Judge: Upinder S. Kalra, Case: 19STCV31320, Date: 2022-09-22 Tentative Ruling

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Case Number: 19STCV31320    Hearing Date: September 22, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 19, 2022                                       

CASE NAME:            Clarissa Vigil v. United Healthcare Services, Inc.

CASE NO.:                19STCV31320

 DEFENDANT’S MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendant United Healthcare Services, Inc.

RESPONDING PARTY(S): Plaintiff Clarissa Vigil

REQUESTED RELIEF:

1.      An order compelling arbitration of Plaintiff’s individual PAGA claim

2.      An order dismissing Plaintiff’s representative PAGA claim

3.      An order staying the proceedings

TENTATIVE RULING:

1.      Motion to Compel Arbitration is DENIED, as Defendant has effectively waived its right to arbitration

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On September 5, 2019, Plaintiff Clarissa Vigil, on behalf of herself, all others similarly situated, and the general public (“Plaintiff”) filed a complaint against United Healthcare Services Inc., and Does 1 through 50 (“Defendant”). The complaint alleged one cause of action: Civil Penalties – Labor Code §§ 2698, et. seq. The Plaintiff’s complaint alleges that the Defendant failed to pay all hours worked, failed to pay overtime wages at a correct rate, failed to provide accurate written wage statements, and failed to timely pay final wages following separate of employment.

On October 7, 2019, Defendant filed an Answer.

On March 23, 2021, Plaintiff filed a Trial Plan.

On September 5, 2021, Defendant filed a Response to the Plaintiff’s Trial Plan.

On January 27, 2022, the Court entered a Minute Order Re: Motion to Dismiss, deeming the Opposition to the Trial Plan as a Motion to Dismiss a claim.

On July 5, 2022, Defendant filed the current Motion to Compel Arbitration. Plaintiff’s Opposition was

LEGAL STANDARD

Under CCP §1285, “any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.  The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”  Under CCP §1285.4, “A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (b) Set forth names of the arbitrators. (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”   

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.  “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.”  Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.  “To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.”  Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.  “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.”  California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205.   

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284. 

Procedural Issues:

Plaintiff’s Opposition was untimely filed. Defendant asserts that the court should not entertain the Opposition. While Plaintiff’s motion was untimely, the Court will review the merits of the motion as Defendant filed a reply with arguments on the merits.

Request for Judicial Notice:

The Court may take judicial notice of the existence of the records, but not the truth of matters asserted in such records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565). As a result, although the court may take judicial notice that the documents exists, the Court may not take judicial notice of the truth of the facts in the documents.

            Additionally, Evidence Code only allows the Court to take judicial notice of certain types of documents. The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) The Evidence Code does not allow the Court to take judicial notice of discovery responses or parts of cases, such as depositions.

Plaintiff requests the Court take Judicial Notice of the following documents:

1.      A print-out from the docket in Adolph v. Uber Technologies, Inc. California Supreme Court Case No. S274671.

2.      Excerpts from the Joint Appendix in Viking River Cruises Inc. v. Moriana, Case No. 20-1573. Available online at www.supremecourt.gov/docket

Defendant requests the Court take Judicial Notice of the following documents:

1.      The Docket for the case entitled Adolph v. Uber Technologies, Inc., S274671 that is pending at the California Supreme Court

2.      Miranda v. Guess? Retail, Inc., Superior Court of California, County of Los Angeles, Case No. BC702270 (September 9, 2022), Order granting Defendant’s motion to compel arbitration of Plaintiff’s individual PAGA claims and dismissing Plaintiff’s representative PAGA claims

Plaintiff’s request for judicial notice is GRANTED, as to both documents. Defendant’s request for judicial notice is GRANTED, as to document 1, and DENIED, as to document 2.

ANALYSIS:

Defendant moves to compel arbitration as to Plaintiff’s individual PAGA claim, dismiss the representative PAGA claim, and stay the proceedings.

1.      Existence of Arbitration Agreement:

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961 (Omar).)   

A.    Agreement Between Parties:

“Arbitration is a product of contract.  Parties are not required to arbitrate their disagreements unless they have agreed to do so.  [Citation.]  A contract to arbitrate will not be inferred absent a ‘clear agreement.’  [Citation.]  When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation.  [Citation.]  In California, a ‘clear agreement’ to arbitrate may be either express or implied in fact.  [Citation.]”  (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-1093 (Davis).)   

In support of the motion, Defendant submits a copy of the Agreement attached to the Declaration of Susan Weedman, the Vice President of Employee Relations at UnitedHealth Group Incorporated, as Exhibit B.

This Policy creates a contract between UnitedHealth Group and employee requiring both parties to resolve employment-related disputes (except the excluded disputes listed below) that are based on a legal claim through final and binding arbitration. Arbitration is the exclusive forum for the resolution of such disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under the Policy. UnitedHealth Group and employee mutually consent to the resolution by arbitration of all claims and controversies, past, present, or future, that employee may have against UnitedHealth Group or UnitedHealth Group may have against employee, which arise out of or relate to employee’s employment, application for employment, and/or termination of employment.

The Defendant’s initial burden to compel arbitration was satisfied. Under Rule of Court Rule 3.1330, a copy of the agreement must be attached and incorporated by reference. Here, Defendant has done so.

B.     Claims Fall Within Scope of Arbitration Clause

Defendant contends that the claims raised in the Plaintiff’s complaint fall within the scope of the arbitration agreement.

a.       Individual Claim and Representative Claim

Specifically, Defendant asserts that the recent decision from Viking River Cruises provides that the individual PAGA claims are to be compelled to arbitration and the non-individual PAGA claims are to be dismissed. Defendant argues that under Viking River, the individual claim must be arbitrated, and the non-individual claim should be dismissed because the plaintiff did not have statutory standing. Here, the agreement, unlike in Viking River, did not have a “wholesale waiver” of the right to pursue a PAGA claim. The agreement signed by Plaintiff states that she agrees to only pursue an individual claim, not a representative claim. (Dec. Weedman, Ex. B, § C.)

Plaintiff asserts that the Viking River issue of wholesale waiver does not apply to the present agreement. Viking stated that the agreement was not a wholesale waiver because the portion of the waiver was still enforceable. (Opp. 6: 8-12, citing to Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925, reh'g denied (U.S., Aug. 22, 2022, No. 20-1573) 2022 WL 3580311.) In contrast, the agreement at issue presently contains a wholesale waiver, of both representative matters and individual PAGA claims as these claims are representative in nature. (Opp. 8: 10-13.)

Viking River Cruises abrogated Iskanian, whereby a plaintiff can be compelled to arbitrate the individual PAGA claim that was agreed to in an arbitration agreement. However, Defendant’s contention that Viking River Cruises compels that Plaintiff’s representative PAGA claim be dismissed because once Plaintiff’s individual PAGA claim is sent to arbitration, he no longer has standing fails. As Plaintiff correctly argues, the California Supreme Court in Kim determined that a plaintiff still has standing to pursue a representative claim even after the individual claims are settled. (Kim, supra, 9 Cal.5th at 80.) According to Labor Code § 2699(a), an aggrieved employee can bring a civil action against a current or former employee. Under subsection (c), an aggrieved employee is a person who was “employed by the alleged violator” and against whom one or more of the alleged violations was committed.” (Id.) Kim added: “The Legislature defined PAGA standing in terms of violations, not injury. Kim became an aggrieved employee, and had PAGA standing, when one or more Labor Code violations were committed against him. (See § 2699(c).) Settlement did not nullify these violations.” (Kim, supra, 9 Cal.5that 84.) Further,

The statutory language reflects that the Legislature did not intend to link PAGA standing to the maintenance of individual claims when such claims have been alleged. An employee has PAGA standing if “one or more of the alleged violations was committed” against him. (§ 2699(c), italics added.) This language indicates that PAGA standing is not inextricably linked to the plaintiff's own injury. Employees who were subjected to at least one unlawful practice have standing to serve as PAGA representatives even if they did not personally experience each and every alleged violation. (§ 2699(c).) This expansive approach to standing serves the state's interest in vigorous enforcement.

(Id.)

While this ruling is inconsistent with the United States Supreme Court’s interpretation of California law in Viking River Cruises, this court is bound by the California Supreme Court’s interpretation of California law.  (See Auto Equity Sales v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450.)

Therefore, Plaintiff’s individual PAGA claims can be compelled to arbitration and, based on the Court’s ruling in Kim, Plaintiff maintains standing as it relates to the representative PAGA claim. Thus, the Plaintiff’s representative PAGA claim is stayed until the resolution of the individual arbitrable 

Defenses to Arbitration

Once it is determined that a valid arbitration agreement exists, the burden shifts to the opposing party to “prove by a preponderance of the evidence any defense to the petition.” (Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257, review denied (Nov. 13, 2019)).

a.      Waiver

Plaintiff contends that Defendant waived the right to compel arbitration. Plaintiff relies on Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152 Cal.App.4th 1522 to argue that “under the totality of the circumstances, [Defendant] has acted inconsistently with the arbitration right.” (Id. at p. 1537.) Defendant points to the fact that the action commenced in September 2019. Thereafter, Defendant filed an Answer in October 2019, propounded and responded to written discovery, deposed Plaintiff Vigil, and filed a Motion to Dismiss the PAGA claims as unmanageable. (Opp. 4: 20-23.) Plaintiff questions why Defendant waited until July 2022 to move for arbitration. The answer is simple: Viking River Cruises was a sea change. It is completely understandable why such a motion was not made earlier because applicable California law made such a motion dead on arrival. The Court finds that this change in law adequately justifies any delay in filing this motion and, thus, declines to find waiver.

b.      Unconscionability

Defendant asserts that the agreement is neither procedurally nor substantively unconscionable and the Plaintiff did not dispute this. Therefore, because Plaintiff did not raise an unconscionability argument, the Court will not provide an analysis on this.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows:

The Motion to Compel Arbitration is GRANTED, as to the individual PAGA claim. Plaintiff’s representative claim is STAYED until March 15, 2023 at 8:30 AM or until further order of the court.

Moving party to give notice.

IT IS SO ORDERED.

Dated:             September 19, 2022                            ___________________________________

                                                                                    Upinder S. Kalra

                                                                                    Judge of the Superior Court