Judge: Teresa A. Beaudet, Case: 23STCV21234, Date: 2025-01-27 Tentative Ruling
Case Number: 23STCV21234 Hearing Date: January 27, 2025 Dept: 50
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BEN PARKER, Plaintiff, vs. THE LOBSTER LLC, et
al., Defendants. |
Case No.: |
23STCV21234 |
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Hearing Date: |
January 27, 2025 |
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Hearing Time: |
10:00 a.m. |
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[TENTATIVE]
ORDER RE: MOTION TO
COMPEL ARBITRATION AND/OR TO STAY ACTION PENDING ARBITRATION |
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Background
Plaintiff Ben Parker
(“Plaintiff”) filed this action on September 1, 2023 against Defendants The
Lobster LLC (“The Lobster”), Robert Kull, and Natasha Nathan. (collectively,
“Defendants”)
Plaintiff filed the
operative First Amended Complaint (“FAC”) on September 12, 2023, alleging
causes of action for (1) discrimination on the basis of age, (2) harassment –
hostile work environment, (3) retaliation, (4) failure to prevent
discrimination, harassment and retaliation,
(5) retaliation, (6) wrongful
termination in violation of public policy, (7) intentional interference with
contract, and (8) negligent interference with prospective economic relations.
The Lobster now moves to
compel arbitration “of the causes of action of the First Amended
Complaint filed herein and to stay any further proceedings in this matter until
any arbitration award is final.”
Plaintiff opposes.
Evidentiary
Objections
The Court rules on the parties’ Joint Statement Re Evidentiary
Objections as follows:
Objections to the
Declaration of Luis Garcia:
Objection No. 4:
overruled
Objection No. 6:
overruled
Objection No. 8:
overruled
Objection No. 11:
overruled
Objection No. 12:
overruled
Objections to the
Amended Declaration of Armando Galvan:
Objection No. 6:
sustained
Objection No. 7:
sustained
Objection No. 8:
sustained
Objection No. 11:
sustained
Objection No. 12:
sustained
Objection No. 13:
sustained
Objection No. 14: overruled
as to the first sentence, sustained as to the second sentence
Objection No. 15:
sustained
Objection No. 16:
sustained
Objections to the
Reply Declaration of Robert F. Kull:
Objection No. 1: sustained.
Objection
No. 2: overruled. The material objected to is not contained in the Reply Declaration
of Robert F. Kull.
Objection No. 3:
overruled. The material
objected to is not contained in the Reply Declaration of Robert F. Kull.
Objection No. 4: overruled.
The material objected to
is not contained in the Reply Declaration of Robert F. Kull.
Objection No. 5:
overruled. The Court notes that paragraph 4 of the Reply Declaration of Robert
F. Kull does not contain the material objected to in Objection No. 5.
Objection No. 10: In
light of the Court’s ruling on Objection No. 1 to the Reply Declaration of
Robert F. Kull, Objection No. 10 is moot.
Objection No. 11: In
light of the Court’s ruling on Objection No. 1 to the Reply Declaration of
Robert F. Kull, Objection No. 11 is moot.
Legal Standard
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.)
Discussion
A. Existence of Arbitration Agreement
In the FAC, Plaintiff
alleges that he “was employed by the LOBSTER for approximately three years,
beginning in or around July 2017, as a server.” (FAC, ¶ 14.) Plaintiff alleges
that he “was unlawfully terminated from his job on or about February 8, 2021.”
(FAC, ¶ 14.)
In support of the
motion, the Lobster submits the Declaration of Luis Garcia. In his declaration,
Mr. Garcia states that “I am employed as the Operations Manager of The Lobster
LLC (‘the Lobster’), a title I have had since March 2019. I have worked for The
Lobster since January 3, 2014, in charge of bookkeeping and maintenance of
personnel records.” (Garcia Decl., ¶ 1.)
Mr. Garcia states that
“[t]he employee file for plaintiff Benjamin (‘Ben’) Parker includes an
Arbitration Agreement dated July 18, 2017, a true and correct copy of which is
attached as Exhibit ‘A.’ The signature for The Lobster is mine and I recognize
Mr. Parker’s signature on the document, as consistent with his other signed
documents for The Lobster.” (Garcia Decl., ¶ 2.) The “Arbitration Agreement”
attached as Exhibit A to Mr. Garcia’s declaration indicates, inter alia,
that “THIS ARBITRATION AGREEMENT (the ‘Agreement’) is entered into by and
between the undersigned individual (‘Employee’) and The Lobster LLC (the
‘Company’) as of the date last written below. The parties hereby agree that any
claim, dispute, or controversy arising out of or relating to the employment or
prospective employment by the Company of Employee which by law may be resolved
by arbitration under the Federal Arbitration Act shall be resolved by final and
binding arbitration before a neutral arbitrator, subject to the following terms
and conditions:…” (Garcia Decl., ¶ 2, Ex. A.)
Mr. Garcia further
states that “[d]ue to a closure of The Lobster restaurant per government order
due to the coronavirus on or about March 20, 2020, Mr. Parker (as well as all
other non-managerial personnel) was terminated as an employee of The Lobster.
To help with hiring of personnel in June 2020, I assembled packages for
emailing to former employees, consisting of a welcome back letter, a New Hire
sheet to record employee contact and pay information, I-9 and W-2 forms, a
Schedule Availability form, The Lobster’s Employee Handbook and Acknowledgement
of Receipt form, a Sexual and Other Harassment Policy, a COVID Procedures
policy and related release form liability form, a Meal Break Waiver form to
waive or not waive meal breaks, and a form Arbitration Agreement and copies of
the JAMS Employment Arbitration Rules and Procedures.” (Garcia Decl., ¶ 3.) Mr.
Garcia states that “[p]er Mr. Parker’s personnel file, he agreed on or about
June 12, 2020 to be re-hired by The Lobster effective then. A true and correct copy
of that signed Arbitration Agreement (the ‘Agreement’), which I recognize was
signed for The Lobster by the then General Manager of The Lobster, Walter
(‘Mickey’) H. Barnes II, is attached hereto as Exhibit ‘B.’” (Garcia Decl., ¶
4.)
The “Arbitration
Agreement” attached as Exhibit B to Mr. Garcia’s declaration also indicates,
inter alia, that “[t]he undersigned individual (‘Employee’) and The Lobster
LLC (the ‘Company’), which has pre-signed this Arbitration Agreement (the
‘Agreement’), agree that any claim, dispute, or controversy arising out of or
relating to the employment or prospective employment by the Company of Employee
which by law may be resolved by arbitration under the Federal Arbitration Act
shall be resolved by final and binding arbitration before a neutral arbitrator,
subject to the following terms and conditions:…” (Garcia Decl., ¶ 4, Ex. B.) The
Arbitration Agreement also provides as follows:
“Without limitation of the foregoing
scope of arbitration and for elucidation purposes, claims subject to
arbitration shall include any and all claims for wages, overtime, bonuses, or
other compensation; claims for breach of an express or implied contract or
covenant, including the duty of good faith and fair dealing; tort claims,
including fraud, defamation, malicious prosecution, wrongful discharge,
wrongful arrest/wrongful imprisonment, and intentional/negligent infliction of
emotional distress; statutory or common law claims for unlawful employment
discrimination or harassment (including, without limitation, discrimination or
harassment based on race, color, sex, sexual orientation, religion, national
origin, ancestry, age, marital status, medical condition, handicap, disability,
uniformed service, genetic information, or other unlawful basis); claims for
sexual or other unlawful harassment; claims for violation of federal or state
constitutional rights; claims for benefits (except where the applicable benefit
plan has specified that its claim procedure shall culminate in an arbitration
procedure different from this one) and claims for violation of any federal,
state or other governmental law, statute, regulation, order, ordinance, or
provision, except claims expressly excluded under paragraph 2 of this Agreement…”
(Garcia Decl., ¶ 4, Ex. B, ¶ 1.)
The Lobster argues that
“each of the alleged claims, for disability and age discrimination, hostile
work environment, harassment, retaliation, wrongful termination, interference
with future employment, and related claims, is plainly within the scope of the
Agreement.” (Mot. at p. 12:21-23.) The Lobster also contends that Plaintiff is
“bound by a written agreement to arbitrate the subject matters of each of the
causes of action asserted in the Complaint as against all named defendants.”
(Notice of Motion at p. 2:6-7.)
In the opposition,
Plaintiff first contends that “because there are two non-signatories to the
arbitration agreement who have not even appeared in this action, there is no
jurisdiction to grant the motion…” (Opp’n at p. 5:13-15.) Plaintiff does not
appear to cite to any legal authority demonstrating why the Court purportedly
has “no jurisdiction” to grant The Lobster’s motion in such a circumstance.
Plaintiff also cites to Code of Civil Procedure section 1281.2, subdivision (c),
which provides that “[o]n petition of a party to an arbitration agreement
alleging the existence of a written agreement to arbitrate a controversy and
that a party to the agreement refuses to arbitrate that 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:…(c) A party to the arbitration agreement is also a party to a
pending court action or special proceeding with a third party, arising out of
the same transaction or series of related transactions and there is a
possibility of conflicting rulings on a common issue of law or fact. For
purposes of this section, a pending court action or special proceeding includes
an action or proceeding initiated by the party refusing to arbitrate after the
petition to compel arbitration has been filed, but on or before the date of the
hearing on the petition. This subdivision shall not be applicable to an
agreement to arbitrate disputes as to the professional negligence of a health
care provider made pursuant to Section 1295.” But
here, Plaintiff does not appear to argue that “there is a possibility of
conflicting rulings on a common issue of law or fact.” ((Id., § 1281.2, subd. (c).) Plaintiff
does not provide any analysis as to the purported application of
Code of Civil Procedure section 1281.2, subdivision (c)
to the circumstances here.
Plaintiff also asserts
that “[t]he alleged arbitration agreement relied on by Lobster is indisputably
between Plaintiff and The Lobster, LLC…which is only one of the three named
party defendants in this action.” (Opp’n at p. 5:19-21.) Plaintiff cites to Thomas v. Westlake (2012) 204 Cal.App.4th 605, 613, where the
Court of Appeal noted “the general rule that only a party to
an arbitration agreement is bound by or may enforce the
agreement.”
As set forth above, the instant
action was filed against The Lobster, Robert Kull (“Kull”), and Natasha Nathan
(“Nathan”). The Lobster does not appear to argue that Kull and Nathan are
signatories to the subject arbitration agreements. (Garcia Decl., ¶¶ 2, 4, Exs.
A-B.) However, The Lobster states that Kull and Nathan are the “two alleged
managing agents” of The Lobster. (Mot. at p. 8:5.) In Thomas v. Westlake,
supra, 204 Cal.App.4th at page 614, the Court of Appeal noted
that “[t]here are…exceptions to the general rule that a nonsignatory…cannot
invoke an agreement to arbitrate, without being a party to the arbitration
agreement. One such exception provides that when a plaintiff alleges a
defendant acted as an agent of a party to an arbitration agreement, the
defendant may enforce the agreement even though the defendant is not a party
thereto.” (Internal quotations and citation omitted.) In the FAC, Plaintiff
alleges that
Kull “was a director, officer, or managing
agent of the LOBSTER.” (FAC, ¶ 3, emphasis added.) Plaintiff also alleges
that Nathan “was a director, officer, or managing agent of the LOBSTER.”
(FAC, ¶ 4, emphasis added.)
However,
The Lobster’s notice of motion indicates that the instant motion is only
brought by The Lobster. Kull and Nathan are not parties to the motion and do
not appear to have filed any motion to compel arbitration. It does not appear
that Kull or Nathan have appeared in the instant action. Thus, Kull and Nathan
do not move to enforce the subject arbitration agreements as non-signatories to
the agreements. In the reply, The Lobster asserts that “the Stipulation that
the ruling on the motion shall be binding on the other Defendants means they
need not be parties to the motion.” (Reply at p. 8:11-12.) However, The Lobster
does not cite to any legal authority to support this proposition.
The Lobster points to
the Declaration of Robert F. Kull filed in support of the motion. Mr. Kull
states that “on November 15, 2023, Mr. Denis agreed on behalf of plaintiff that
Ms. Nathan and I need not appear in this action at this time as she and I agreed
to be bound by the ruling of the Court as to The Lobster on the within Motion.”
(Kull Decl., ¶ 3, Ex. D [Email Correspondence].) But The Lobster does not point
to any Court order pursuant to a stipulation of the parties which provides that
Kull and Nathan are bound by the Court’s order on the instant motion to compel
arbitration. As discussed, “[t]here are…exceptions to the general rule that a
nonsignatory…cannot invoke an agreement to arbitrate, without being a party to
the arbitration agreement. One such exception provides that when a plaintiff
alleges a defendant acted as an agent of a party to an arbitration agreement,
the defendant may enforce the agreement even though the defendant is not a
party thereto.” (Thomas v. Westlake, supra, 204 Cal.App.4th at p. 614
[internal quotations and citation omitted.) Here, Kull and Nathan are
not parties to the instant motion and do not seek to enforce the arbitration
agreements.
The
Lobster also cites to a portion of “Paragraph 5” to support its assertion that
“the express terms of the Agreement make the claims against Nathan and Kull
arbitrable.” (Reply at p. 8:19-20.) But paragraph 5 of the 2020 arbitration
agreement provides, “[e]xcept as proscribed by law and consistent with the
Federal Arbitration Act, all claims must be brought only in a party’s
individual capacity, and not in a representative capacity for any purported
class of employees or agency or in another collective or representative
capacity or proceeding. The arbitrator may not consolidate more than one
person’s claims and may not otherwise preside over any form of a class,
collective or representative proceeding. Claims against the Company shall
include claims against any affiliated company of the Company (‘Affiliate’),
whether parent, subsidiary, or sister company, or any Member, Manager, officer,
director, or employee (current or former) of Company or Affiliate, or of any
alleged joint employer.” (Garcia Decl., ¶ 4, Ex. B.) The Court does not see how
this provision shows that Plaintiff’s causes of action against Kull and Nathan can
be ordered to arbitration when they have not appeared in this action.
Based on the foregoing,
the Court does not find that The Lobster has demonstrated that arbitration may
be compelled as to non-signatories Kull and Nathan.
Next,
Plaintiff appears to argue that The Lobster waived the right to compel
arbitration. Plaintiff asserts that “the delay in requesting arbitration, done
in concert Lobster [sic], misled and prejudiced the Plaintiff and the reasons
for arbitrating this case no longer exist (speedy resolution, reduced cost) and
no public policy would be benefited by compelling arbitration at this point in
the litigation.” (Opp’n at p. 7:1-3.) But Plaintiff does not explain how The
Lobster purportedly delayed in requesting arbitration. No further analysis or
evidence appears to have been provided to support Plaintiff’s waiver argument.
Plaintiff also contends that “Defendant never obtained the requisite
consent and assent from Plaintiff to arbitrate her [sic] claims. Plaintiff
never saw, read or intentionally consented and signed on to it.” (Opp’n at p.
8:8-11.) In his supporting declaration, Plaintiff states that “I have reviewed
the Declaration of Luis Garcia in support of the motion of Defendant The
Lobster (hereinafter referred to as ‘Defendant’) to Compel Arbitration (‘Motion’)
and Exhibit A - what Mr. Garcia identifies as ‘an Arbitration Agreement dated
July 18, 2017’ (hereinafter referred to as ‘AA’). I recall being told by
Lobster management agents to sign papers and that I had no choice, or else I
would lose my job. I do not recall ever reading or signing the AA.” (Parker
Decl., ¶ 2.) Plaintiff also states that “I have reviewed the Declaration of
Luis Garcia in support of the Motion and Exhibit B - - what Mr. Garcia
identifies as ‘a signed Arbitration Agreement’ in ‘Mr. Parker’s personnel file’
wherein ‘he agreed on or about June 12, 2020 to be re-hired by The Lobster’ and
dated June 12, 2020 (hereinafter referred to as ‘AA-I’). Exactly the same
applies to this document as I stated in reference to AA.” (Parker Decl., ¶ 4.)
However, The Lobster notes that “[e]very contract requires mutual
assent or consent…and ordinarily one who signs an instrument which on its face
is a contract is deemed to assent to all its terms. A party cannot avoid the
terms of a contract on the ground that he or she failed to read it before
signing.” ((Marin Storage & Trucking, Inc. v.
Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049.) In addition, The Lobster cites to
Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 967,
where the Court of Appeal noted that “Martinez does not dispute he signed
the agreement. He is, therefore, deemed to have assented to all its terms.” As
noted by The Lobster, Plaintiff does not appear to deny that he signed either
of the arbitration agreements.
Based on the foregoing, the Court finds that The Lobster has
demonstrated that an arbitration agreement exists between The Lobster and
Plaintiff that covers the claims Plaintiff alleges in the FAC. Therefore, the
Court finds that the burden now shifts to Plaintiff to prove a ground for
denial.
B.
Grounds to Deny Arbitration: Unconscionability
Plaintiff asserts that
“the alleged arbitration provisions are both procedurally and substantively
unconscionable…” (Opp’n at p. 9:11-12.)
An arbitration agreement
must be both procedurally and substantively unconscionable to be unenforceable.
((Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th
83, 114); (Mission
Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1159
[unnecessary to decide whether insurance policy was adhesion contract and
procedurally unconscionable because it was not substantively unconscionable].)
i.
Procedural Unconscionability
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].)
In the opposition, Plaintiff argues that he
“did not have a choice, whether or not to refuse to sign any paper, let alone
the purported arbitration agreement.” (Opp’n at p. 10:24-25.)
As
set forth above, in his supporting declaration, Plaintiff states that “I have
reviewed the Declaration of Luis Garcia in support of the motion of Defendant
The Lobster…to Compel Arbitration…and Exhibit A - what Mr. Garcia identifies as
‘an Arbitration Agreement dated July 18, 2017’ (hereinafter referred to as ‘AA’).
I recall being told by Lobster management agents to sign papers and that I had
no choice, or else I would lose my job…” (Parker Decl., ¶ 2.) Plaintiff also
states that “I have reviewed the Declaration of Luis Garcia in support of the
Motion and Exhibit B - - what Mr. Garcia identifies as ‘a signed Arbitration
Agreement’ in ‘Mr. Parker’s personnel file’ wherein ‘he agreed on or about June
12, 2020 to be re-hired by The Lobster’ and dated June 12, 2020 (hereinafter
referred to as ‘AA-I’). Exactly the same applies to this document as I stated
in reference to AA.” (Parker Decl., ¶ 4.)
Based on the foregoing, the Court finds that
Plaintiff has demonstrated a low level of procedural
unconscionability. “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¿¿.)
ii.
Substantive Unconscionability
“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
quotations and citation omitted].)
Plaintiff asserts that
“[t]he arbitration agreement generally and specifically the delegation clause
in the Agreement is substantively unconscionable.” (Opp’n at p. 11:24-25.) The
Court notes that Plaintiff does not identify which specific provision he is
referring to. Nor does Plaintiff appear to provide any legal authority
demonstrating why the unidentified “delegation clause” is purportedly substantively
unconscionable.
Next, Plaintiff asserts
that “Defendant has overreached with its provision for attorney fees, and
failure to attach any purported rules that will govern at the time of the
purported agreement to arbitrate.” (Opp’n at p. 12:11-12.)
As to his argument
concerning attorney’s fees, Plaintiff appears to be pointing to the provision
providing, “[t]he arbitrator shall be entitled to award all sums and forms of
relief as could be awarded or granted in a judicial or administrative action
predicated on the same claims for relief, including, as applicable, expedited
and permanent injunctive relief, punitive damages, statutory penalties, and
recovery of attorneys’ fees, costs and expenses (except for arbitration fees
(as limited by paragraph 4 below)).” (Garcia Decl., ¶ 4, Ex. B, ¶ 3.)
Plaintiff contends that
“[t]he provision in the AA in this case as to fees is both unconscionable and
in direct contrast to California law and FEHA provisions, which do not provide
for ‘discretion’ in awarding, a plaintiff employee, fees, and do not allow for ‘discretion’
to award a defendant employer’s [sic] its fees.” (Opp’n at p. 12:21-24.) As an
initial matter, the above-referenced provision does not provide that the
arbitrator has “discretion” to award any fees, it provides that “[t]he
arbitrator shall be entitled to award all sums and forms of relief as could be
awarded or granted in a judicial or administrative action predicated on the
same claims for relief…” (Garcia Decl., ¶ 4, Ex. B, ¶ 3.) Moreover, Government Code section 12965, subdivision (c)(6),
cited by Plaintiff, provides that “[i]n civil actions brought under this
section, the court, in its discretion, may award to the prevailing
party, including the department, reasonable attorney’s fees and costs,
including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a
prevailing defendant shall not be awarded fees and costs unless the court finds
the action was frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.” (Emphasis added.)
As to Plaintiff’s
argument pertaining to the purported failure to attach any rules, paragraph 6
of the arbitration agreements provide that “[r]esolution of claims hereunder
shall be administered by JAMS (http://jamsadr.com)) and, except as modified
herein, the arbitration shall be governed by the JAMS Employment Arbitration
Rules & Procedures in effect at the time of filing for arbitration. These
Rules are available at http://www.jamsadr.com/rules-employment-arbitration/ and
a [condensed] copy of them as currently drafted is attached hereto. The parties
shall be entitled to fair pre-arbitration discovery.” (Garcia Decl., ¶¶ 2, 4, Exs. A-B.)
Plaintiff does not appear to address this provision in the opposition.
Plaintiff also contends
that “[t]he AA is flawed in its entirety due to the overbreadth and expansive
protections given, in a one-sided manner, to Defendant- and none to Plaintiff…”
(Opp’n at p. 13:5-7.) The Court does not find that Plaintiff has demonstrated
what specific “expansive protections” are purportedly provided solely to Defendants
under the arbitration agreements. Plaintiff also contends that “[i]n the
present case, it is certain well more than the ‘one deposition’ will be
necessary- at least 5-10 depositions by Plaintiff of defense side witnesses and
PMKs - to allow a meaningful fair arbitral forum, but that is unlikely to be
allowed given the track record experienced to date in The Lobster cases.”
(Opp’n at p. 13:12-15.) As set forth above, the Court sustains The Lobster’s
evidentiary objection to Plaintiff’s counsel’s assertion that “it is extremely
unlikely” that the subject depositions are to be allowed. (Galvan Decl., ¶ 8,
The Lobster’s Evidentiary Objection No. 14.) In addition, The Lobster notes
that Rule 17(b) of the JAMS Employment Arbitration
Rules & Procedures provides, “[e]ach Party may take at least one deposition
of an opposing Party or an individual under the control of the opposing Party.
The Parties shall attempt to agree on the number, time, location, and duration
of the deposition(s). Absent agreement, the Arbitrator shall determine these
issues, including whether to grant a request for additional depositions, based
upon the reasonable need for the requested information, the availability of
other discovery and the burdensomeness of the request on the opposing Parties
and the witness.” (https://www.jamsadr.com/rules-employment-arbitration/).
Plaintiff also asserts
that “per JAMS rule 17, no interrogatories are
even allowed.” (Opp’n at p. 13:15-16.) Plaintiff does not identify what
specific rule he is referring to, and the Court is unable to find such a rule. Plaintiff also contends that “JAMS rule 22(d) works against Plaintiff and substantial
justice and to defense advantage, allowing hearsay and loose application of
evidence rules.” (Opp’n at p. 13:16-17.) But Plaintiff does not explain how Rule 22(d) would work against Plaintiff and to Defendants’
advantage.
Plaintiff also contends
that “[t]he AA at paras. I (sic) and 2, clearly refers to ‘employee’ claims and
by implication broad categories of claims The Lobster could bring against an
employee are excluded, by express omission.” (Opp’n at p. 14:9-11.) Plaintiff
does not cite any legal authority to support this proposition. Moreover,
paragraph 1 of the arbitration agreements does not appear to refer to
“employee” claims as Plaintiff contends. (Garcia Decl., ¶¶ 2, 4, Exs. A-B.)
Based on the
foregoing, the Court does not find that Plaintiff has demonstrated that the
subject arbitration agreements are 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].)
Accordingly, the Court does not find
that Plaintiff has met his burden of demonstrating that the arbitration
agreements are unenforceable
due to unconscionability.
Conclusion
Based on the foregoing, The Lobster’s motion to compel
arbitration is granted as to The Lobster only.
The action is stayed as to named but unserved parties Kull and Nathan
pending completion of arbitration of Plaintiff’s arbitrable claims. The Court notes that pursuant
to Code of Civil Procedure section 1281.4, “[i]f 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…If the issue which is the controversy
subject to arbitration is severable, the stay may be with respect to that issue
only.” The Court
also notes that in Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714, the California Supreme Court noted that “Plaintiff contends that a stay of her action with respect
to Kaiser will lead to piecemeal and protracted litigation because
she has also named as defendants the two blood banks. We agree that
plaintiff may properly join the blood banks as parties defendant…but that right
does not empower her to avoid her duty to arbitrate any dispute
with Kaiser. We point out that under these circumstances, the trial court
is not required to stay all proceedings against the defendants who are not
entitled to arbitration; the court may, in its discretion, sever the action as
to the blood banks or limit any stay to those issues subject to
arbitration. (See Code Civ. Proc., § 1281.4; Cook v. Superior Court (1966) 240
Cal.App.2d 880, 885 [50 Cal.Rptr. 81].).”
The Court sets an arbitration completion status conference
on January 27, 2026, 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.¿¿
The Lobster is ordered to provide
notice of this Order.¿
DATED:
________________________________
Hon. Teresa A.
Beaudet
Judge, Los
Angeles Superior Court