Judge Theresa M. Traber, Case 22STCV10246 2023-03-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV10246, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCV10246 Hearing Date: March 6, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 6, 2023 TRIAL DATE: NOT SET

CASE: Toni A. Gooden v. Kite Pharma, Inc., et al.

CASE NO.: 22STCV10246

MOTION TO COMPEL ARBITRATION x2

MOVING PARTY: (1) Defendant Astrix Technology, LLC; (2) Defendants Kite Pharma, Inc. and Christi Shaw

RESPONDING PARTY(S): (1)(2) Plaintiff Toni A. Gooden

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This action was filed on March 24, 2022 under the Private Attorneys General Act of 2004. Plaintiff alleges that Defendants have a policy and practice of failing to pay minimum wages and overtime, and severance, failing to provide statutorily-required meal and rest periods, failing to provide itemized wage statements, and failing to provide personnel records.

Defendants move to compel arbitration of Plaintiff’s individual claims and dismiss her representative claims.

TENTATIVE RULING:

Astrix Technology, LLC’s Motion to Compel Arbitration is DENIED.

Defendants Kite Pharma, Inc. and Christi Shaw’s Motion to Compel Arbitration is DENIED.

DISCUSSION:

Motion to Compel Arbitration (Astrix Technology, LLC)

Defendant Astrix Technology, LLC moves to compel Plaintiff’s individual claims to arbitration and to dismiss her representative claims as a third-party beneficiary to an arbitration agreement between Plaintiff and Defendant Kite Pharma.

Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of the JAMS employment arbitration rules. As these materials are not relevant to the Court’s ruling on this motion, Defendants’ request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Plaintiff’s Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of the Order Denying Defendants’ Motion to Compel Arbitration and Stay Action issued in Toni Gooden v. Kite Pharma Inc., et al. LASC Case No. 21STCV45436. The ruling of another judge on a separate motion in a separate, pending action is not material to the disposition of this motion. Plaintiff’s request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Existence of Arbitration Agreement

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Rather than providing an arbitration agreement signed by Plaintiff, Astrix instead offers an unsigned copy of the form Contingent Workers Agreement which is allegedly identical to the one that Astrix contends that Plaintiff signed. (Declaration of Ellen Kaplan ISO Mot. ¶ 16, Exh. A.) Astrix offers sworn declaration stating that this form is routinely used by Defendants for employing contingent workers. (Kaplan Decl. ¶ 5, Declaration of Kim Tran ISO Mot. ¶ 8.) Astrix admits that it is unable to locate or retrieve a copy of the agreement allegedly signed by Plaintiff. (Kaplan Decl. ¶ 18.) Instead, Astrix provides a DocuSign eSignature page, which Astrix alleges is associated with the CWA, showing that Plaintiff signed that document at 1:24 p.m. on April 30, 2021. (Tran Decl. Exh. B.) Astrix states that the form CWA is the only document that was provided to Plaintiff via DocuSign. (Kaplan Decl. ¶ 16.) Astrix contends that this evidence is sufficient to prove the existence of an arbitration agreement under the secondary evidence rule, codified in Evidence Code section 1521.

Under Evidence Code 1521, “[t]he content of a writing may be proved by otherwise admissible secondary evidence” except where “a genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or “[a]dmission of the secondary evidence would be unfair.” (Evid. Code § 1521.) To demonstrate the contents of a lost writing, courts have “admitted a standard form of the lost document, as well as evidence of a routine practice of a party.” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1070.) However, to prove the contents of a lost document that is closely related to the controlling issues, it must be shown that the writing was not “reasonably procurable by the use of the court’s processes or by other available means.” (Evid. Code § 1523(c)(1).)

In opposition, Plaintiff contends that she never signed any arbitration agreement with Astrix. (Declaration of Toni Gooden ISO Mot. Exh. 3.) Plaintiff challenges the admissibility of Astrix’s evidence to the contrary, arguing that Astrix has not shown that the writing was not “reasonably procurable by the use of the court’s processes or other available means.” The Declaration of Kim Tran, Astrix’s managing director, states that she “believed DocuSign would retain a copy” of the CWA, and that a search of her “email files and the DocuSign system” did not turn up any record of the signed agreement. (Tran Decl. ¶ 7.) The Declaration of Brenda Salgado, a project manager for Defendant Kite and its subsidiary Gilead, states only that she “conducted a diligent search of my emails and Kite’s Fieldglass system in an attempt to find a copy of the executed version of the CWA that Toni Gooden signed, but was unable to do so.” (Declaration of Brenda Salgado ISO Mot. ¶ 11.) These conclusory statements, by themselves, are not sufficient to establish that the missing document was not reasonably procurable.

By contrast, the declaration of Ellen Kaplan, Gilead’s Director, Procurement Global Head of the Contingent Workforce Program, states that the search of Kite’s records included searches of Ms. Kaplan’s email, Kite’s Fieldglass database, and the emails of all those involved in Plaintiff’s onboarding process, as well as consultation with Kite’s IT personnel to search the rest of Kite’s electronic files. (Kaplan Decl. ¶ 18.) This testimony is much more substantial, and, despite Plaintiff’s arguments to the contrary, the Court finds this evidence satisfactory as to the thoroughness of Defendants’ efforts to locate the document in their own records. However, Defendants’ records are not the end of the inquiry, as the CWA was allegedly sent via DocuSign and, thus, a copy might reasonably be found in DocuSign’s records as well. On this point, Ms. Kaplan’s declaration only states that “we also contacted DocuSign to ask if they were able to find a copy of Toni Gooden’s signed CWA in their system, but they were not able to do so.” (Kaplan Decl. ¶ 18.) There is no evidence as to what searches were undertaken, the methodology employed, which individual contacted DocuSign and which individual responded, or even the form or dates of any correspondence with DocuSign. A conclusory statement that the Defendants contacted a third party to try to locate a missing document, and the third party could not do so is not sufficient to demonstrate that a writing which might logically be in the third party’s possession is not “reasonably procurable by use of the court’s processes or by other available means.”

In reply, Astrix contends that section 1523 is only applicable to oral testimony and not sworn affidavits. This contention is not well-taken. It is well-settled that a sworn affidavit is equivalent to oral witness testimony. (Code Civ. Proc. § 98.) The Court is similarly unpersuaded by Astrix’s argument that it is not obligated to comply with section 1523(c)’s evidentiary requirements because the writing was lost without fraudulent intent, and thus may introduce oral testimony of its contents under Evidence Code section 1523(b). However, Astrix offers no evidence or explanation as to why this document is missing, and none of the supporting declarations offer so much as a bare recitation that the writing was lost or destroyed without fraudulent intent, such that Astrix could take shelter under that subdivision.

The Court finds that Astrix has therefore not met the requirements of Evidence Code section 1523 to introduce these declarations as secondary evidence of the existence of a missing arbitration agreement. As Astrix cannot introduce these declarations, Astrix has not demonstrated the existence of an arbitration agreement between Plaintiff and Kite Pharma. The Court therefore does not reach the remaining issues of a superseding agreement, unconscionability, or the effect of Viking River Cruises v. Moriana (2022) 569 U.S. ___ on this case.

Conclusion

Accordingly, Astrix Technology, LLC’s Motion to Compel Arbitration is DENIED.

Motion to Compel Arbitration (Kite Pharma, Inc. and Christi Shaw)

Defendants Kite Pharma, Inc. and Christi Shaw move to compel arbitration of Plaintiff’s individual claims and dismiss her representative claims pursuant to an alleged arbitration agreement.

Defendants’ Request for Judicial Notice

Defendants request that the Court take judicial notice of the JAMS employment arbitration rules. As these materials are not relevant to the Court’s ruling on this motion, Defendants’ request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Plaintiff’s Request for Judicial Notice

Existence of Arbitration Agreement

The parties to this motion raise the same issues and arguments concerning the existence of the alleged arbitration agreement as litigated in Astrix Technology’s motion to compel arbitration addressed above. Accordingly, for the same reasons stated in connection with that motion, the Court finds that Defendants have not established the existence of an arbitration agreement between the parties, and therefore does not reach the remaining issues raised in the moving papers.

Conclusion

Accordingly, Defendants Kite Pharma, Inc. and Christi Shaw’s Motion to Compel Arbitration is DENIED.

CONCLUSION:

Accordingly, Astrix Technology, LLC’s Motion to Compel Arbitration is DENIED.

Defendants Kite Pharma, Inc. and Christi Shaw’s Motion to Compel Arbitration is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: March 6, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.