Judge: Theresa M. Traber, Case: 23STCV18977, Date: 2024-04-08 Tentative Ruling
Case Number: 23STCV18977 Hearing Date: April 8, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 8, 2024 TRIAL DATE: NOT
SET
CASE: Julian Urbina Huicochea v. Brightview
Landscape Services, Inc., et al.
CASE NO.: 23STCV18977 
MOTION
TO COMPEL ARBITRATION
MOVING PARTY: Defendants Brightview Landscape Services, Inc.,
Brightview Landscape Development, Inc., and Brightview Landscapes, LLC.
RESPONDING PARTY(S): Plaintiff Julian
Urbina Huicochea
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an employment discrimination action that was filed on August 9,
2023. Plaintiff alleges that he was harassed and ultimately terminated for
sustaining a work-related injury and requiring accommodations for his resulting
disability.
Defendants move to compel this
matter to binding arbitration pursuant to an arbitration agreement.
TENTATIVE RULING:
Defendants’ Motion to Compel
Arbitration is GRANTED.
All
future hearings are advanced to this date and vacated.
The Court sets a Status
Conference for a report on the status of the arbitration proceeding for April
7, 2025, at 8:30 a.m.
DISCUSSION:
Defendants move to compel this
matter to binding arbitration pursuant to an arbitration agreement.
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 persuasion to establish 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.)
As to the burden of production,
rather than persuasion, courts have articulated a three-step burden shifting
process:
First, the moving party bears the
burden of producing “prima facie evidence of a written agreement to arbitrate
the controversy.” [citation] The moving party “can meet its initial burden by
attaching to the [motion or] petition a copy of the arbitration agreement
purporting to bear the [opposing party’s] signature.” [citation] Alternatively,
the moving party can meet its burden by setting forth the agreement’s
provisions in the motion. [citations] For this step, “it is not necessary to
follow the normal procedures of document authentication.” [citation] If the
moving party meets its initial prima facie burden and the opposing party does
not dispute the existence of the arbitration agreement, then nothing more is
required for the moving party to meet its burden of persuasion.
If the moving party meets its initial
prima facie burden and the opposing party disputes the agreement, then in the
second step, the opposing party bears the burden of producing evidence to
challenge the authenticity of the agreement. [citation] The opposing party can
do this in several ways. For example, the opposing party may testify under oath
or declare under penalty of perjury that the party never saw or does not
remember seeing the agreement, or that the party never signed or does not
remember signing the agreement. [citations]
If the opposing party meets its burden
of producing evidence, then in the third step, the moving party must establish
with admissible evidence a valid arbitration agreement between the parties. The
burden of proving the agreement by a preponderance of the evidence remains with
the moving party. [citation].
(Gamboa v. Northeast Community Clinic (2021) 72
Cal.App.5th 158, 165-66.)
Here, Defendants seek to compel
arbitration based on a “Mutual Arbitration Agreement” signed by Plaintiff on
July 9, 2021 as part of his hiring. (Declaration of Tammy Alameda ISO Mot. Exh.
A. p.1) Defendants have provided a copy of the agreement which appears to bear
Plaintiff’s handwritten signature as well as the signature of two of
Defendants’ Vice Presidents of Human Resources. (Alameda Decl. Exh. A p.8.)
Plaintiff, in opposition, does not dispute that he signed the arbitration
agreement, although he challenges its enforceability as discussed below.
The Court therefore finds that
there is an agreement to arbitrate between Defendants and the Plaintiff.
Applicability of the FAA
Page 6 of
the Arbitration Agreement expressly states:
“We understand and agree that this is an agreement to arbitrate under
the Federal Arbitration Act.” (Alameda Decl. Exh. A. p.6.) Plaintiff does not
dispute that this agreement is governed by the Federal Arbitration Act.
Scope of the Arbitration Agreement
“The scope of arbitration is a matter of
agreement between the parties.” (See, e.g., Ericksen, Arbuthnot, McCarthy,
Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.) “A
party can be compelled to arbitrate only those issues it has agreed to
arbitrate.” (Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408,
419.)
Defendants contend that the arbitration
agreement delegates questions of the scope, validity, and enforceability of the
agreement to the arbitrator. “The parties may, by clear and unmistakable
agreement, elect to have the arbitrator, rather than the court, decide
which grievances are arbitrable.” (Rodriguez v. American Technologies, Inc.
(2006) 135 Cal.App.4th 1110, 1123 [emphasis added].) The Agreement states only:
“To the extent not inconsistent with the Federal Arbitration Act, this
Agreement and its interpretation, validity, construction, enforcement and
performance, as well as disputes and/or claims arising under this Agreement,
shall be governed by the law of the state where Employee works or worked at the
time the arbitrable dispute or claim arose.” (Alameda Decl. Exh. A. p. 6.) Defendants
nonetheless argue that scope, validity, and enforceability issues have been
delegated to the arbitrator because the Agreement incorporates the National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association. (Alameda Decl. Exh. A. p. 5.) This is not, by any measure, a
“clear and unmistakable agreement” to delegate questions of enforceability or
scope of the agreement to the arbitrator. Defendants’ contention that the scope
and validity of the agreement are the sole province of the arbitrator is
entirely without merit.
That said, the
Agreement expressly states that it covers, inter alia, claims for
wrongful termination, discrimination, harassment, and retaliation. (Alameda
Decl. Exh. A. p. 3.) The claims described are precisely the type of claims
which Plaintiff has asserted in his Complaint, and Plaintiff does not dispute
that the Arbitration Agreement covers the claims which he has asserted against
Defendants.
//
Unconscionability
Plaintiff’s
sole challenge to the Arbitration Agreement is that it is unenforceable because
it is unconscionable.
1. Procedural
Unconscionability
“‘To
briefly recapitulate the principles of unconscionability, the doctrine has
“‘both a “procedural” and a “substantive” element,’ the former focusing on
‘“oppression”’ or ‘“surprise”’ due to unequal bargaining ¿power, the latter on ‘“overly harsh”’ … or ‘“one-sided”’
results.” [Citation.] The procedural element of an unconscionable contract
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.’” … [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’
[Citation.]” (Citation omitted.)
“Under this approach, both the procedural
and substantive elements must be met before a contract or term will be deemed
unconscionable. Both, however, need not be present to the same degree. A
sliding scale is applied so that ‘the more substantively oppressive the
contract term, the less evidence of procedural unconscionability is required to
come to the conclusion that the term is unenforceable, and vice versa.’
(Citations omitted.)
(Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 645
(bold emphasis added).)
Plaintiff
first argues that the delegation clause and the arbitration provision are both
procedurally unconscionable because it is a contract of adhesion. As Plaintiff
freely concedes, contracts of adhesion only demonstrate a minimum amount of
procedural unconscionability.
“The
procedural element of the unconscionability analysis concerns the manner in which
the contract was negotiated and the circumstances of the parties at that time.
[Citation.] The element focuses on oppression or surprise. [Citation.]
‘Oppression arises from an inequality of bargaining power that results in no
real negotiation and an absence of meaningful choice.’ [Citation.] Surprise is
defined as ‘“the extent to which the supposedly agreed-upon terms of the
bargain are hidden in the prolix printed form drafted by the party seeking to
enforce the disputed terms.”’ [Citation.]” (Citation omitted.)
Plaintiffs claim the Agreement is procedurally
unconscionable because it is an adhesion contract. An adhesion contract is “a standardized
contract … imposed upon the subscribing party without an opportunity to
negotiate the terms.” (Citation omitted.) “The term signifies a standardized
contract, 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. [Citation.]” (Citation omitted.)
The California Supreme Court has consistently
stated that “‘[t]he procedural element of an unconscionable contract generally
takes the form of a contract of adhesion … .’ ”
(Citations omitted.)
“Whether the challenged provision is within a
contract of adhesion pertains to the oppression aspect of procedural
unconscionability. A contract of adhesion is “imposed and drafted by the party
of superior bargaining strength” and “relegates to the subscribing party only
the opportunity to adhere to the contract or reject it.” (Citations omitted.) “[A]bsent unusual
circumstances, use of a contract of adhesion establishes a minimal degree of
procedural unconscionability notwithstanding the availability of market
alternatives.” (Citation omitted.)
(Walnut Producers of California,
supra, 187 Cal.App.4th at 645-46 [bold emphasis added].) Thus,
although it is undisputed that the Arbitration Agreement is a condition of
Plaintiff’s employment (see Alameda Decl. Exh. A. p.7), that fact only
demonstrates a minimal level of procedural unconscionability.
Plaintiff
also contends that the Arbitration Agreement is procedurally unconscionable
because of surprise. “Unfair surprise results from misleading bargaining
conduct or other circumstances indicating that a party’s consent was not an
informed choice.” (Penilla v. Westmont Corp. (2016) 3 Cal.App.5th 205,
215 [internal citations omitted].) Surprise “covers a variety of deceptive
practices and tactics.” (Id. at 216.) Plaintiff states that when he was
hired on July 9, 2021, he met with Bertha Medina, one of Defendants’ Human
Resources Personnel, at approximately 9 A.M. (Declaration of Julian Huicochea
ISO Opp. ¶ 2.) Plaintiff states that he was led to a computer and told to fill
out online forms, and that, after approximately an hour, Ms. Medina returned
and instructed Plaintiff to check boxes or skip sections to complete the forms
faster. (Id. ¶ 3.) When asked if she was sure that Plaintiff did not
need to read what he was checking off, Ms. Medina said yes. (Id.)
Plaintiff further states that at some time between 11:30 A.M. and 12 P.M., Ms.
Medina gave Plaintiff a large stack of papers and instructed him to sign them.
(¶ 4.) According to Plaintiff, when asked what the documents were, Ms. Medina
merely described them as “paperwork,” and confirmed that Plaintiff did not need
to read what he was signing. (Id.)
Defendant
challenges Plaintiff’s characterization of what he signed, stating that
Plaintiff signed 14 documents totaling 20 pages, all of which are contained in
his personnel file. (Declaration of Bertha Medina ISO Reply Exh. B.) Ms. Medina
also states that her practice is to explain the documents, and specifically to
read portions of the Arbitration Agreement to the employee. (Id. ¶¶
4-5.) Ms. Medina categorically denies ever rushing an employee through the
process or instructing an employee not to read the documents. (Id. ¶ 4.)
The Court observes from this production that Plaintiff signed a “Team Member
Handbook Acknowledgement Form” and a “Brightview Safety Pledge” which appear to
be components of separate handbooks. (Medina Decl. Exh. B. p.24.) However, the
Arbitration Agreement is set forth in unique font and does not bear the same
imagery or letterhead as the bulk of the paperwork on file. (See generally
Medina Decl. Exh. B.)
The Court
is persuaded by Defendants’ showing. When challenged, Defendants have presented
what they claim, under penalty of perjury, to be the full collection of
documents signed by Plaintiff. These materials rebut Plaintiff’s
characterization that he was presented with a “large stack” of papers with
minimal time to review what he was signing. Plaintiff has therefore only
demonstrated minimal procedural unconscionability.
2.
Substantive Unconscionability
Plaintiff argues that the agreement
is substantively unconscionable. As Plaintiff has shown only a minimal level of
procedural unconscionability, Plaintiff bears a higher burden to demonstrate
substantive unconscionability.
“A
provision is substantively unconscionable if it ‘involves contract terms that
are so one-sided as to “shock the conscience,” or that impose harsh or
oppressive terms.’ [Citation.] The phrases ‘harsh,’ ‘oppressive,’ and ‘shock
the conscience’ are not synonymous with ‘unreasonable.’ Basing an
unconscionability determination on the reasonableness of a contract provision
would inject an inappropriate level of judicial subjectivity into the analysis.
¿‘With a concept as nebulous as “unconscionability” it is important that courts
not be thrust in the paternalistic role of intervening to change contractual
terms that the parties have agreed to merely because the court believes the
terms are unreasonable. The terms must shock the conscience.’ [Citations.]”
(Walnut Producers of California v. Diamond Foods, Inc.
supra, 187 Cal.App.4th at 647-48.) An
agreement is not substantively unconscionable if it:
(1)
provides for neutral arbitrators, (2) provides for more than minimal discovery,
(3) requires a written award, (4) provides for all of the types of relief that
would otherwise be available in court, and (5) does not require employees to
pay either unreasonable costs or any arbitrators’ fees or expenses as a
condition of access to the arbitration forum. Thus, an employee who is made to
use arbitration as a condition of employment "effectively may vindicate
[his or her] statutory cause of action in the arbitral forum.’ "
(Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83,
102.)
Plaintiff
contends that the agreement is substantively unconscionable because it
prohibits asserting claims that are otherwise covered by the Arbitration
Agreement in a class, collective, or representative action. The Agreement
specifically state that these claims are prohibited only “[t]o the maximum
extent permitted by law.” (Alameda Decl. Exh. A. p. 4.) Plaintiff contends that
this term is nevertheless substantively unconscionable under Hasty v.
American Automobile Association of Northern California, Nevada, & Utah
(2023) 98 Cal.App.5th 1041. In that case, the Court of Appeal found that
several provisions in an arbitration agreement were unfairly one-sided,
including a wavier of administrative relief, a confidentiality clause, and an
absolute waiver of the ability to bring an action in a representative, class,
or private attorney general capacity. (Hasty, supra, 98 Cal.App.5th at
1062-63.) Leaving aside that this provision does not preclude individual
private attorney general claims, as discussed by Hasty and mandated by Adolph
v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1123, the Arbitration
Agreement expressly limits its prohibition on class, collective, and
representative claims only to the extent permitted by law. Thus, accepting
Plaintiff’s contention that this provision is per se improper, that
argument merely renders this term ineffective by its own language. This single
term in the agreement is not sufficient to meet Plaintiff’s heightened burden
to demonstrate substantive unconscionability.
As
Plaintiff has failed to carry his burden to demonstrate substantive
unconscionability, the Court finds that the Arbitration Agreement is
enforceable and not unconscionable.
CONCLUSION:
Accordingly,
Defendants’ Motion to Compel Arbitration is GRANTED.
All
future hearings are advanced to this date and vacated.
The
Court sets a Status Conference for a report on the status of the arbitration
proceeding for April 7, 2025, at 8:30 a.m.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: April 8, 2024 ___________________________________
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
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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.