Judge Upinder S. Kalra, Case Number: 23STCV00545, Date: 2023-10-18 Tentative Ruling

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1. Motion to Compel Arbitration is GRANTED as to Defendant Dr. Susan Love Research Foundation only.

2. Motion to Stay Proceedings is GRANTED as to Defendant Dr. Susan Love Research Foundation only.

Plaintiff David Miller (Plaintiff) filed a Complaint against Defendants Dr. Susan Love Research Foundation, Trinet Group, Inc., and Trinet HR, III, Inc. on January 10, 2023 with seven causes of action for:

1. Violation of FEHA - Discrimination Based on Age and Disability/Perceived Disability;

2. Violation of FEHA - Harassment Based on Age and Disability/Perceived Disability;

6. Violation of FEHA – Failure to Investigate/Prevent/Correct FEHA Violations; and

Defendant TriNet Group, Inc. and TriNet HR, III, Inc. filed Answers on February 27, 2023. Defendant Dr. Susan Love Research Foundation filed an Answer on April 13, 2023.

According to the Complaint, Plaintiff began working part-time for the Foundation in April 2015. His part-time work schedule was an accommodation for a disability. He alleges that the Foundation overlooked him for several promotions, he felt compelled to forego his part-time accommodation, and the Foundation harassed and retaliated against him based on his disability.

Defendant Dr. Susan Love Research Foundation (Moving Defendant) timely filed the instant motion on June 15, 2023, which was refiled on July 26, 2023.

The court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication [CCP § 437c (q)] or a special motion to strike [Cal. Code. Civ. Proc. (CCP) § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.] As such, the court respectfully declines to rule on any of these objections. The court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

Under California law, the trial court has authority to compel arbitration pursuant to CCP §1281.2 where a written agreement for such arbitration exists and one of the parties refuses to arbitrate. Specifically, the statute 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 thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement arbitrate the controversy exists.” The statute further sets forth four grounds upon which the trial court may refuse to compel arbitration: (a) the right to compel arbitration was waived, (b) recission of the agreement, (c) there is a pending action or special proceeding with a third party, arising out of the same transaction; and (d) petitioner is a state or federally chartered depository institution.

“[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¿(Guiliano).)¿“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, supra, at p. 1284.)¿

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).)¿¿¿

The moving party can meet its initial burden of proving the existence of an arbitration agreement by attaching a copy of the Agreement to this motion bearing the signature of the opposing party. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 541-543 [“The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the¿respondent's signature.”].) Alternatively, the moving party can meet its initial burden by setting forth the agreement’s provisions in the motion. (See Cal. Rules of Court, rule 3.1330; see also Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.)

Here, Moving Defendant met its initial burden because it attached a copy of the Agreement. (Thompson Decl., Exhibit A.) The parties do not contest Plaintiff’s signature on the TCA.[1]

Moving Defendant contends that the TCA covers Plaintiff’s claims because it arises out of his employment relationship with Moving Defendant and is not otherwise specifically carved out. Plaintiff argues that the TCA does not cover his FEHA claims against Moving Defendant because he understood the TCA to refer only to disputes with TriNet concerning their online portal and that the TCA does not explicitly refer to FEHA claims.

Here, the court agrees that the TCA covers Plaintiff’s claims against Moving Defendant because the TCA does not explicitly carve out FEHA claims. (Thompson Decl., Exhibit A.) Additionally, Plaintiff does not provide authority that FEHA claims cannot be arbitrated or that an arbitration agreement must state that the employee is submitting their FEHA claims to arbitration.[2]

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)).

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 (Armendariz)).

Plaintiff contends the TCA is procedurally unconscionable because it is not labeled an Arbitration Agreement, it is a contract of adhesion, and it was presented to him in a misleading manner. Defendant argues that the TCA is not procedurally unconscionable because it is a short document and the Dispute Resolution Procedure is conspicuous within it.

Courts determine whether an agreement is procedurally unconscionable 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 (Carmona)). Examples of contracts that are procedurally 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, supra, at p. 113).

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). Here, the TCA was not a surprise; it had stated in all caps at the start of the document “PLEASE READ THIS TCA CAREFULLY. IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR USE OF THE TRINET PLATFORM AND ONLINE SERVICES, YOUR RELATIONSHIP WITH TRINET, AND THE HANDLING OF ANY DISPUTES ARISING OUT OF YOUR RELATIONSHIP WITH TRINET, YOUR COMPANY, AND RELATED MATTERS. (Thompson Decl. Exhibit A.) (bolding added.) On that same first page, section 9 clearly breaks down the Dispute Resolution Protocol into six parts with what looks like hyperlinks.[3] (Ibid.) The Agreement also states in bold on page 6 that arbitration will replace jury trials, and then in bold and all caps states “NO JURY TRIAL WILL BE PERMITTED.” (Ibid.) The agreement also explains the procedures for the process if there is a dispute between the parties. For these reasons, the court is not persuaded by Plaintiff’s argument that it was unclear this Agreement was an agreement to arbitrate disputes.[4]

Defendant contends that the TCA complies with the Armendariz factors. Plaintiff argues that the TCA is substantively unconscionable because it lacks mutuality.[5]

“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, supra, at p. 85). There are five minimum substantive requirements to an enforceable arbitration agreement: (1) neutral arbitrators, (2) more than minimal discovery, (3) written award sufficient for judicial review, (4) all types of relief otherwise available in court, and (5) no unreasonable costs or fees as a condition of access. (Armendariz, supra, at p.102.) When there is little procedural unconscionability, a party opposing arbitration must show substantial substantive unconscionability. (Id. at 114.)

Here, the court agrees with Defendant that the TCA meets the Armendariz factors.[6] First, the TCA provides for a neutral arbitrator because it states that “[t]he arbitrator will be selected by a mutual agreement of the parties and will be an experienced attorney licensed in the state where the arbitration will be held or retired judicial officer who served in that state as a judge or another qualified individual.” (Thompson Decl., Exhibit A, pg. 7.) Second, the TCA provides for more than minimal discovery because it states that the parties will have the right to “conduct adequate civil discovery.” (Ibid.) Third, the TCA provides for a written award because it states “The arbitrator . . . will include a written opinion providing reasoned explanations for the decision . . . the award may be confirmed, corrected or vacated by a court of competent jurisdiction . . . .” (Id. at pg. 8.) Fourth, the TCA provides for all types of relief available in court because it states “The arbitrator may award any remedy warranted under applicable law . . . .” (Ibid.) Fifth, the TCA provides that the “TriNet customer interested in enforcing this DRP for its/their own benefit will pay the arbitrator’s and arbitration fees.”[7] (Id. at pp. 7-8.)

1. Motion to Compel Arbitration is GRANTED as to Defendant Dr. Susan Love Research Foundation only.

2. Motion to Stay Proceedings is GRANTED as to Defendant Dr. Susan Love Research Foundation only.

[1] Plaintiff objects to Mr. Thompson’s declaration as lacking personal knowledge and foundation because he did not personally witness Plaintiff use his credentials to electronically sign the TCA. However, this argument is meritless because Plaintiff’s declaration admits that he consented to the TCA. (Miller Decl. ¶ 7.)

[2] The court is not persuaded by Plaintiff’s assertion that Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 applies here because the TCA is between Plaintiff as an individual and not negotiated by a union on his behalf.

[3] In fact, the Dispute Resolution Protocol is half of the agreement – starting on page 5 and ending on page 8 of an 8 page agreement.

[4] If anything, Plaintiff’s argument implies he did not read the TCA before signing it which is not a defense to enforcement. (See, e.g., Madden v. Kaiser Found. Hosps. (1976) 17 Cal.3d 699, 710 & fn. 11.)

[5] The court rejects Plaintiff’s lack of mutuality argument because, despite creative advocacy, the Plaintiff quotes portions of the TCA that do not pertain to the Dispute Resolution Protocol and Plaintiff ignores that the Dispute Resolution Protocol refers to “the parties” (not “the employee” or “employee” alone) several times. The court similarly rejects Plaintiff’s argument that the term “your company” was too generic and could not mean Moving Defendant since he had allegedly been working for them since 2015 and electronically signed the TCA in 2019. (Compl. ¶ 12; Thompson Decl. ¶¶ 10, 12.)

[6] Outside of these factors, the court notes that the TCA also provides for a location “no more than 75 miles from the location where [Plaintiff] last regularly worked for your worksite employer, unless the parties agree to another location.” (Thompson Decl., Exhibit A, at p. 7.) This indicates Plaintiff would not incur unnecessary travel fees as a hurdle to access arbitration.

[7] Additionally, Moving Defendant confirms that they will pay these fees as indicated in the Declaration of Christopher Conway submitted with this motion. (Conway Decl. ¶ 4.)