Judge: Upinder S. Kalra, Case: 21STCV37248, Date: 2022-08-22 Tentative Ruling
Case Number: 21STCV37248 Hearing Date: August 22, 2022 Dept: 51
Tentative Ruling
Judge Upinder
Kalra, Department 51
HEARING DATE: August 15, 2022
CASE NAME: Cameron Lowe v. Michaels Stores Inc.,
et al.
CASE NO.: 21STCV37248
DEFENDANT’S
MOTION TO COMPEL ARBITRATION & STAY PROCEEDINGS
MOVING PARTY: Defendant Michaels Stores
Inc., et al.
RESPONDING PARTY(S): Plaintiff Cameron
Lowe
REQUEST RELIEF:
1.
An order compelling
arbitration
2.
An order staying
the proceedings
TENTATIVE RULING:
1.
Motion to Compel
Arbitration is GRANTED.
2.
Motion to Stay
Proceedings is GRANTED.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
On October 8,
2021, Plaintiff Cameron Lowe (“Plaintiff”) filed a complaint against Defendants
Michaels Stores Inc., Michaels Stores Procurement Company Inc., Stephanie
Gordon-Madrid, David Acuna, and Does 1 through 100. The complaint alleged 12
causes of action: (1) Breach of Express Contract, (2) Breach of the
Covenant of Good Faith & Fair Dealing, (3) Wrongful Termination in Violation
of Public Policy, (4) Violation of California Constitution, (5) Violation of
California Government Code §12900, et seq. (6) Violation of Business &
Professions Code §17200, (7) Fraud, (8) Intentional Infliction of Emotional
Distress, (9) Violation of Civil Code §51, et seq. (10) Violation of Labor
Code-rest, meal period, (11) Violation of Labor Code §§226, 1198.5 - Wage
statements, and (12) Violation of California Labor Code §1102.5 -
(Whistleblower). The complaint alleges that the Plaintiff worked for the Defendant
but was terminated after he informed the Defendant of the hostile work
environment. The Plaintiff, a Black male, was harassed and discriminated
against.
On December 30, 2021, Defendants Michaels Stores Inc., Michaels Stores Procurement
Company Inc., Stephanie Gordon-Madrid, and David Acuna filed an Answer.
On January 3,
2022, Defendants filed a Notice of Removal to federal Court.
On March 1, 2022,
the Court filed a Notice of Remand from Federal Court.
On May 10, 2022, Defendants
filed a Motion to Compel Arbitration.
On May 10, 2022,
Defendants filed a Motion for Stay of the Proceedings.
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
Matter:
Length of
Memorandum
Under Rule 3.1113, subsection (d) indicates that responding
memorandum may not exceed 15 pages. Under subsection (f), if a memorandum
exceeds 10 pages, a table of contents and table of authorities must be
included. Here, Defendant’s opposition exceeds the 15 page limit, filing a 22
page opposition. Further, there was no table of contents or table of
authorities attached. However, under subsection (g), an oversized memo is
considered in the same manner as a late-filed paper. Under Rule of Court Rule
3.1300, a court has discretion to refuse to consider the paper, but
nonetheless, the court will.
Moreover,
the Plaintiff also filed a supplemental opposition with a recent case that was
7 pages long.
Additionally,
Plaintiff’s filed a Sur-Reply on June 15, 2022. However, as Defendants point
out in their objection, this sur-reply is in direct violation of this Court’s
Order filed on June 2, 2022. In it, this Court ruled that the motion would be
continued to June 16, 2022. However, the other requests, which included a
request for Plaintiff to file a supplemental opposition, was denied; the Court
explicitly stated “All other relief denied as inappropriate on an ex parte
basis.” Therefore, because this supplemental reply was in direct violation of
the Court’s order, the Court will disregard this document.
Evidentiary
Objections:
Plaintiff’s
Objections: Mikel McMullen Declaration:
Sustained:
Overruled:
1-17
Plaintiff’s
Objections: Sara Creagan-Wysocki
Sustained:
Overruled:
18-55
Defendant’s Objections: Cameron Lowe
Declaration:
Sustained:
10,12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29
Overruled:
2, 3,4, 5, 6, 7, 8, 9, 11, 13
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.
Defendant requests the court take judicial notice of three
documents:
1. The
United States District Court for the Northern District of California’s ruling
in Armstrong v. Michaels Stores, Inc.,
2018 WL 6505997 (N.D. Cal., December 11, 2018),
2. The
Superior Court of California, County of Los Angeles’s ruling on September 22,
2020, in Hughes v. Michaels Stores, Inc.,
et al., granting Michaels’ motion to compel arbitration
3. The
Superior Court of California, County of Los Angeles’s ruling on March 11, 2021,
in Stholder v. Michaels Stores, Inc., et
al., granting Michaels’ motion to compel arbitration.
Request for Judicial Notice is DENIED. While the Court may
properly take judicial notice of the existence of the records but not the
truth, it is clear that Defendant is seeking that the Court take judicial
notice of the documents for their truth, otherwise the documents have no
relevance
ANALYSIS:
Defendant moves to compel the Plaintiff to arbitration.
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 its motion, Defendant submits a copy of the
Agreement attached to the Declaration of Mikel McMullen, the Manager of Human
Resources at the Distribution Center in Tracy, California, and who was
previously the Manager of Human Resources at the Distribution Center in
Lancaster, California. The Mutual Agreement to Resolve and Arbitrate Claims
states in part:
“Both You and the Company agree to
use final and binding arbitration to resolve any covered disputes we have not
resolved together as explained in this agreement. This means that the Company
and You agree to arbitrate any covered dispute and submit all covered disputes
to arbitration. We both agree that disputes covered by this Agreement will be
decided by an Arbitrator and not by a court or jury trial.”
It further states that covered disputes include”
“All past, present, and future
claims or disputes, including without limitation those claims related to or
arising out of your employment, your application for employment, and/or your
termination of employment with the Company, that the Company may have against
You or that You may have against the Company or its past, present, and future
officers, directors, principals, shareholders, members, owners, employees, or
benefit plans…”
Plaintiff
argues that Defendant failed to establish the existence of a contract, mainly
that Plaintiff electronically signed on-boarding documents. Specifically,
Plaintiff asserts that Defendant did not comply with UETA. The Declaration of
Creagan-Wysocki contains the agreement that purportedly contains Plaintiffs
signature; Plaintiff, however, states that he did not sign this, “someone else
other than Plaintiff could have done so without his knowledge.”
This argument too fails. 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. Once Plaintiff challenged the validity
of the signature, “defendants were then required to establish by a
preponderance of the evidence that the signature was authentic.” (Espejo v. Southern California Permanente
Medical Group (2016) 246 Cal.App.4th 1047, 1060). In Espejo, the supplemental declaration of the systems consultant
provided the necessary information to establish the authenticity of the
document, specifically how the unique username and password were only
accessible to that specific individual. (Id. at 1062). Espejo dealt with an electronic signature, which requires a
different type of authentication.
First, Defendant is not seeking
arbitration based on the electronic signature, but rather the handwritten
signature that was signed on March 24, 2019. (Ex. A, McMullen Dec.). Second,
Defendant submitted a supplemental declaration of Mike McMullen. The
Declaration provides that as Manager of Human Resources, he has access to
personnel files including other documents that the Plaintiff signed and
acknowledged during onboarding and other matters. These documents are included
as Exhibits A-M, to McMullen’s Supplemental Declaration. The Court carefully
reviewed the signature lines of these documents, the signature in the employee
handbook and the signature as well Plaintiff’s signature on his declaration in opposition
to this motion. The Court has considered Plaintiff’s assertion that the
signature is not his. The Court is convinced, by a preponderance of evidence,
that the signature on the Arbitration Agreement is sufficiently similar to
Plaintiff’s signatures on these various other documents to demonstrate that
Plaintiff signed the Arbitration agreement. Thus, notwithstanding Plaintiff’s
claim denying signing the Arbitration Agreement, the Court finds that Defendant
has met its burden by a preponderance of the evidence establishing mutual
assent to the Arbitration Agreement.
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. Plaintiff’s complaint is based on claims of discrimination,
harassment, and retaliation and later termination during his employment with
Defendant.
Plaintiff
argues that Defendant did not establish that agreement falls under the FAA.
This argument fails. The Agreement states that this agreement is governed by
the FAA. “The federal statute rests on the authority of Congress to enact
substantive rules under the commerce clause, requiring courts to enforce
arbitration agreements in contracts involving interstate commerce.” (Cronus Investments, Inc. v. Concierge
Services (2005) 35 Cal.4th 376, 383). The document states “This
Agreement…are governed by a federal law called the Federal Arbitration Act…and
evidences a transaction involving commerce.” (Dec. McMullen, Ex. A, ¶ 3).
Additionally, the supplemental Declaration of Mikel McMullen states, Defendant
is a “nationally known retailer with stores and distribution centers located in
49 out of the 50 states in the United States.” (Supp. Dec. McMullen ¶4). The language
of the Agreement encompasses the types of claims raised in the Complaint.
1.
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.
Equitable
Estoppel
Plaintiff
argues that Defendant Michaels Stores Inc., was not Plaintiff’s employer and
therefore is estopped from arbitration. The Defendant Michaels Stores Inc. is
the only named Defendant in the agreement, but it was not Plaintiff’s employer.
Therefore, under Labor Code § 2810.5, it cannot enforce an arbitration
agreement. Plaintiff’s W2 indicates that Defendant Michaels Stores Procurement
Company Inc., was Plaintiff’s employer and is the only party to enforce the
agreement. Plaintiff was not informed that Defendant Michaels Stores
Procurement Company Inc., was Plaintiff’s employer.
Generally, only parties to a
contract containing an arbitration agreement may enforce that arbitration
clause. (Thomas v. Westlake (2012)
204 Cal.App.4th 605, 613.) There are exceptions to the general rule.
Under one such exception, the doctrine of equitable estoppel, a nonsignatory
defendant may move to enforce an arbitration clause. (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222,
1236.) “ ‘In any case applying
equitable estoppel to compel arbitration despite the lack of an agreement to
arbitrate, a nonsignatory may compel arbitration only when the claims against
the nonsignatory are founded in and inextricably bound up with the obligations imposed by the agreement
containing the arbitration clause.’ ” (Felisilda
v. FCA US LLC (2020) 53 Cal.App.5th 486, 498 (Felisilda).) Defendant here argues that they may
enforce the arbitration agreement through equitable estoppel.
The
agreement expressly provides that this agreement is entered between the
Plaintiff and Michaels Stores, Inc., “and its subsidiaries, affiliates,
parents, and related entities.” (Dec. McMullen, Ex. A, ¶ 1). As the
supplemental declaration of Mikel McMullen, “Defendants are related entitles as
they are both subsidiaries of The Michaels Companies Inc.” (Supplemental Dec.
McMullen ¶ 4). Additionally, “if, as the complaint alleges, the individual
defendants, though not signatories, were acting as agents for the Rams, then
they are entitled to the benefit of the arbitration provisions.” (Dryer v. Los Angeles Rams (1985) 40
Cal.3d 406, 418). There was a direct employer-employee relationship. Plaintiff,
in the complaint, alleges that Defendants were agents of co-Defendants, and the
actions were authorized. (Complaint ¶ 12). The agreement is valid and equitable
estoppel allows the arbitration to continue; Plaintiff’s argument that
Defendant is estopped from compelling arbitration fails.
b.
Waiver
Plaintiff contends that Defendant
waived the right to compel arbitration when Defendant answered and then removed
the matter to federal court. Plaintiff
cites to Cabinetree of Wisconsin, Inc., v. Kraftmaid Cabinetry,
Inc. (7th Cir.1995) 50 F.3d 388, 390–391, for the notion that removal is a
presumptive waiver of arbitration. Defendant responds with contrary federal
authority. “A
defendant's removal of a case filed in state court to federal court does not by
itself constitute an implicit waiver of the right to compel arbitration. (Halim v. Great Gatsby's Auction Gallery,
Inc. (7th Cir.2008) 516 F.3d 557, 562.) Federal authority is persuasive but not controlling. (Alan v. Superior Court (2003) 111 Cal.App.4th 217, 229.)
The real issue is whether Defendant
has engaged in conduct demonstrating, under federal law, “an intentional relinquishment
or abandonment of a known right.” (United
States v. Olano (1993) 507. U.S. 725, 733), and under state law conduct that
conduct that evinces waiver. “ ‘ “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.’ ” ’ ”(Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th
19, 31-31.) However, “waivers are not lightly to be inferred and the party
seeking to establish a waiver bears a heavy burden of proof” because federal
and state law both reflect “a strong policy favoring arbitration agreements.” (St.
Agnes Medical Center v. PacificCare of California (2003) 31 Cal.4th
1187, 1195.)
Here, Plaintiff filed a Complaint
on October 8, 2021, and Defendant filed an Answer on December 30, 2021. Prior
to Defendant filing an Answer, Defendant sought a stipulation from Plaintiff to
submit to arbitration. (Decl. Burns ¶ 8.) Plaintiff refused to stipulate.
(Decl. Burns ¶9.) Then, Defendant sought removal to Federal Court, but the
matter was remand almost immediately on February 24, 2022. Then, after the
matter was remanded, within weeks, the Defendants made a reservation for the
current motion. (Decl. Burns ¶ 12.) In the interim, Plaintiff’s served written
discovery requests. . (Decl. Burns ¶ 11.) From this record, the Court would be
hard pressed to find that Plaintiff has carried their heavy burden establishing
waiver. Plaintiff’s reliance on Hoover v.
American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193 is misplaced. There,
Defendants not only removed the matter unsuccessfully to federal court, but thereafter
continued to litigate the matter in state court for almost a year, including
filing two demurrers, contested discovery, and failed to raise discovery in the
case management statement. (Id. at p.
1205.) Here, on the other hand, Defendant reached out to Plaintiff before
filing an Answer indicating a desire to arbitrate, prominently repeated this
desire in their Answer, repeated this desire in their case management statement,
did not file any demurrers or contest discovery in court and reserved this
motion within weeks of remand. As such, the court declines to find waiver here.
c. Unconscionability
In Armendariz, the
California Supreme Court stated that when determining whether an arbitration
agreement was unconscionable, there is both a procedural and a substantive
element. (Armendariz v. Foundation Health
Psychcare Service, Inc. (2000) 24 Cal.4th 82, 114).
i.
Procedurally
Courts determine whether an agreement is
unconscionable procedurally by looking at surprise and oppression. Oppression
is an “inequality of bargaining power, when one party has no real power to
negotiate or a meaningful choice. Surprise occurs when the allegedly
unconscionable provision is hidden.” (Carmona
v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84). Examples of contracts that are procedural unconscionable
are contracts of adhesions, which is 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.” (Armendariz v. Foundation Health
Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113). Plaintiff argues
that the agreement is procedurally unconscionable because it is (1) a contract
of adhesion and (2) the rules were not attached.
Here, while this may have been a contract of adhesion,
as most employment contracts are, this alone does not mean the whole agreement
is procedurally unconscionable. “When arbitration is a condition of employment,
there is inherently economic pressure on the employee to accept arbitration.
This alone is a fairly low level of procedural unconscionability.” (Cisneros Alvarez v. Altamed Health Services Corporation (2021) 60 Cal.App.5th 572,
591). The agreement was not a surprise; the document is stand alone, with
Mutual Arbitration Agreement is bold letters at the top. This agreement also
explains the procedure, including the waiver of a right to jury trial. Thus, the
agreement is minimally procedurally unconscionable.
Second, while failure to attach rules could be a
factor in finding procedural unconscionability if it was truly a surprise, as
the court in Lane noted, “there could
be no surprise” when the rules are easily accessed by the Internet. (Lane v. Francis Capital LLC (2014) 224
Cal.App.4th 676, 691). Further, the Court in Cisneros Alvarez indicated, “the law requires more than the simple
failure to provide the employee with a copy of the rules.” (Cisneros Alvarez v. Altamed Health Services
Corporation (2021) 60 Cal.App.5th 572, 590, as modified (Mar. 4, 2021)).
Cases that indicated procedurally unconscionability based on the failure to
attach rules, also involved substantively unconscionable provisions in the
omitted rules. Even so, the URL for the rules is provided in addition to an
email address to request a copy of the rules. (Dec. McMullen Ex. A, pg. 50).
While Plaintiff argues that Harper v.
Ultimo provides that not attaching the rules is oppressive, the Court
indicated that the oppression was “more onerous” because agreement makes it
unclear as to “whether an arbitration would be conducted under the Better
Business Bureau rules as of the time of contracting, or at the time of
arbitration.” (Harper v. Ultimo
(2003) 113 Cal.App.4th 1402, 1407). Again, the rules were provided via the URL
link.
ii.
Substantively
“Substantive
unconscionability pertains to the fairness of an agreement's actual terms and
to assessments of whether they are overly harsh or one-sided.” (Carmona v. Lincoln Millennium Car Wash, Inc.
(2014) 226 Cal.App.4th 74, 85).
Plaintiff contends that the agreement is substantively
unconscionable because (1) limits discovery and (2) it waives statutory rights
under FEHA. Plaintiff asserts that this limitation on discovery is
unconscionable, like in Mercuro v. Superior Court. There, the parties were
entitled to a total of 30 discovery requests, which included three depositions.
However, the Court still indicated that they were “unable to say the Countrywide
arbitration agreement does not afford adequate discovery rights to employees
seeking to vindicate statutory rights as required under Armendariz.” (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 184). As the Court also
stated, “'adequate’ discovery does not mean
unfettered discovery and Armendariz itself recognizes an arbitration agreement may
require “something less
than the full panoply of
discovery provided in Code of Civil Procedure section 1283.05.” (Id.).
As to the waiver of jury trial, Plaintiff argues also fails.
“Inherent in an arbitration agreement is a waiver of trial by jury—a waiver
that is not precluded by the Constitution or [section 631 of] the Code of Civil
Procedure.” (Jaramillo v. JH Real Estate
Partners, Inc. (2003) 111 Cal.App.4th 394, 401). Further, “[w]ith respect
to FEHA claims, our Supreme Court has outlined certain minimum requirements
which must be met to ensure the preservation of statutory rights in an arbitral
forum: (1) the agreement must provide for neutral arbitrators, (2) the
agreement may not limit remedies provided under the statute, (3) there must be
sufficient discovery to adequately arbitrate the employee's statutory claim,
(4) there must be a written arbitration decision and judicial review sufficient
to ensure the arbitrator complied with the statutory requirements, and (5) the
employer must pay all costs unique to arbitration.” (Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1059, as
modified (Nov. 28, 2018)). Here, Agreement satisfies these requirements: (1)
there is a neutral arbitrator (Dec. McMullen, Ex. A, p. 5.), (2) the agreement provides for adequate
discovery (Dec. McMullen, Ex. A, p. 1), (3), the agreement provides that a
written decision shall be provided, including the reasons for the decision,
within 30 days after the hearing (Dec. McMullen, Ex. A, pg. 1), (4) the agreement does not limit remedies
or relief available (Dec. McMullen, Ex. A, p. 6), and (5) the agreement
does not impose additional costs for Plaintiff. (Dec. McMullen, Ex. A, p. 6).
The Agreement is not substantively unconscionable.
Even if the adhesive nature of the
contract is sufficient to establish some procedurally unconscionability, the
lack of substantive unconscionability is dispositive. Employing the sliding
scale that this court must utilize, the minimal amount of procedural
unconscionability coupled with the lack of substantive unconscionability, is
not sufficient to render the arbitration agreement invalid. In other words, the
arbitration agreement is valid and enforceable.
MOTION TO STAY THE PROCEEDINGS
Defendant
argues that under both the CAA and FAA, an action must be stayed to resolve
whether the matter should be subject to arbitration. If the matter is subject
to arbitration, then that proceedings must be stayed until the arbitration is
complete.
Because the
arbitration is valid and the motion to compel arbitration is GRANTED, the
Motion to Stay the Proceedings is GRANTED.
Conclusion
For the foregoing reasons, the
Court decides the pending motion as follows:
Motion to
Compel Arbitration is GRANTED. Motion to Stay Proceedings is GRANTED.
Action is stayed and an OSC Re status
of arbitration and/or dismissal is set for March 3, 2023, at 8:30 a.m. in Dept.
51.
Moving party to give notice.
IT IS SO ORDERED.
Dated: August 15, 2022 ___________________________________
Upinder
Kalra
Judge
of the Superior Court