Motion by Defendant to Compel Arbitration
Opposition
Reply
Supplemental Opposition
Supplemental Reply
Tentative:? Grant individual arbitration as to 1st ? 7th causes of action (defendant to pay arbitration costs); stay PAGA cause of action.? Waiver of right to bring class action or arbitration is enforceable, but not subject to “motion to strike.”
The court, sitting “as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence” ?finds plaintiff signed an arbitration agreement in Spanish.? (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)? The court compared acknowledged plaintiff signatures with the challenged signature and finds plaintiff’s declaration that he did not sign the arbitration agreement to be not credible.
Moving party satisfied its burden to demonstrate its business involves interstate commerce, so the FAA governs the Agreement and preempts Labor Code Section 229 and California case law holding class action waivers in arbitration agreements unenforceable.? (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.)? (See 5/6/16 Figueroa Decl., ? 6; 5/24/16 Supp. Figueroa Decl., ?14.) ?Moreover, the agreement also specifically refers to the FAA.
Plaintiff did not demonstrate both procedural and substantive unconscionability.? Here, as in virtually all employment arbitration agreements, the “take it or leave it” aspect results in some procedural unconscionability.? There is additional procedural unconscionability because the Agreement does not refer to where the case will be arbitrated and what arbitration rules will apply.? (Carbajal, supra, 245 Cal.App.4th at p.? 243.)? But the Agreement specifies the arbitration is to be conducted by a retired California superior court judge in accordance with the procedures of the Arbitration Act of California.? The Agreement provides that ?[a]ll rules for submission of arguments (including the right to object), all evidence rules, all rights to resolve the dispute through motions for summary judgment, judgment on the pleadings and trial under Section 631.8 of the Code of Civil Procedure shall be applied and respected.?? (Agr. Section 5.)
The court finds no substantive unconscionability.? The agreement’s? purported PAGA waiver is simply unenforceable and severed.? The class-action waiver is not substantively unconscionable under the FAA.? (AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1750-53, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 359-360.)
The Agreement is mutual and no provisions limit Plaintiff?s ability to fully vindicate his rights in arbitration or limit his remedies.? Section 5 of the Agreement provides the resolution of all disputes ?shall be based solely on the law governing the claims and defenses alleged . . . .?? Plaintiff does cite to any portion of the Agreement that would support his argument that arbitration will prejudice his claims.
The agreement provides for a neutral arbitrator, who must prepare a written opinion.? It is silent as to discovery, but the lack of a provision for discovery does not invalidate the Agreement.? (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.)
The agreement is also silent as to costs, but Trim-Lok has agreed to all Plaintiff?s costs associated with the arbitration, and that is part of the court’s order.? (Figueroa Decl., ? 7.)
What about timing for the PAGA claims?? What about the date for the next status conference?