The Court rules as follows on Plaintiff’s objections to evidence:

Declaration of Laura Perches.

1-3     Overruled

Declaration of Jeffrey E. Fields.

1-2     Overruled

The court rules as follows on Defendants’ objections to evidence:

Declaration of Denise Datta.

1.       Overruled.

2.       Overruled.

3.       Overruled as to first two sentences, sustained as to balance, lack of foundation.

The motion by defendants CashCall, Inc., LoanMe, Inc. and Ralis Services Corporation to Compel Arbitration is GRANTED.

Defendants met their initial evidentiary burden to show: (1) The existence of written agreement to arbitrate; (2) A demand to arbitrate and refusal by the party opposing arbitration; and (3) Proof that the arbitration agreement covers the dispute at issue. Mansouri v. Superior Court (2010) 181 Cal.App.4th 633.

While Defendant LoanMe is not a party to either Employee Acknowledgement Form containing the two agreements to arbitrate, it has the right to compel arbitration as a non-signatory, as it is an intended third party beneficiary of both agreements. Plaintiff’s complaint alleges that Defendant LoanMe is an agent, employee, servant, et al of the other Defendants. (Compl, ¶ 7). The express terms of both agreements reflect an intent to benefit each signatory’s “… owners, managers, employees and agents.” (Employee Acknowledgement Form, § 3(iv)).

Additionally, Defendant LoanMe has the right to compel arbitration under the doctrine of equitable estoppel. The factual allegations as to all three Defendants are essentially identical, and Plaintiff’s complaint alleges that she was employed by all three Defendants (Compl. ¶ 22), with each of the causes of action all arising from her employment with the Defendants. See Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 786.

Plaintiff’s evidence fails to establish the facts necessary to show that either Employee Acknowledgement Form is unconscionable, or otherwise unenforceable. Plaintiff does establish that both Employee Acknowledgement Forms were offered on a take it or leave it basis and are therefore contracts of adhesion. This alone is insufficient to establish unconscionability. Lagatree v. Luce, Forward, Hamilton & Scripps LLP (1999) 74 Cal.App.4th 1105, 1122.

Defendants’ failure to attach a copy of the JAMS employment arbitration rules or provide a copy to Plaintiff is not dispositive. Subsequent appellate cases to those cited by Plaintiff have limited the issue to cases where the unattached rules actually create the unconscionability challenge to the contract, i.e. where the provisions of the unattached arbitration rules create substantive unconscionability. See Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246.

As discussed below, Plaintiff’s arguments as to the provisions of the JAMS employment arbitration rules are without merit, thus the failure to attach a copy of, or otherwise provide a copy of the JAMS employment arbitration rules is not evidence of procedural unconscionability.

The arbitration provisions in the Employee Acknowledgement Forms are clear, emphasized, and not “hidden,” thus the agreement to submit to binding arbitration contained in the Employee Acknowledgement Forms is not evidence of procedural unconscionability. Thus Plaintiff’s sole showing as to procedural unconscionability is that execution of the Employee Acknowledgement Forms was a condition of Plaintiff’s employment with Defendants.

Plaintiff has also failed to establish substantive unconscionability. The JAMS employment arbitration rules incorporated by reference provide for pre-hearing discovery. See Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 984 [adequate discovery is not “unfettered discovery”; discovery provision not unconscionable as arbitrator could order additional discovery upon a showing of need].

Plaintiff’s argument that an employer can sabotage an arbitration by refusing to pay fees is likewise without merit, as either party may advance fees to avoid administrative suspension of the case or termination of the case (Rule 6 (c)), and Plaintiff would in any event be required to pay such fees (trial continuance or motion to compel as argued) if the case were in the Superior Court. If the arbitrator finds for Plaintiff, the award can include any costs advanced by Plaintiff. See Rule 6(c).

Rule 17(c) requires the parties to exchange any newly discovered non-privileged documents, and to supplement regular and expert witness lists. The Rule also provides that undisclosed evidence and witnesses may not be considered by the Arbitrator absent a stipulation of the parties, or for good cause shown. This Rule is consistent with having the action decided on the merits, and is not “overly harsh or one-sided.” Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-11; Dotson v. Amgen, Inc., supra.

Plaintiff fails to cite to any authority for the proposition that a requirement that she pay a case administration fee constitutes substantive unconscionability; nevertheless, for purposes of this arbitration the court strikes the sentence in the JAMS Rules requiring Plaintiff to pay such case management fee in advance, and notes that the Employee Acknowledgement Form, § 3, provides as follows: “The Company will pay for all of the costs and expenses of such arbitration.”

Rule 22 gives the arbitrator the discretion to consider evidence where the other side was not afforded the opportunity to cross-examine the witness. The Court finds that this Rule is not “overly harsh or one-sided” and is therefore not evidence of substantive unconscionability.

As Plaintiff has made no showing of substantive unconscionability, and a minimal showing of procedural unconscionability, she has not shown grounds for the Court to refuse to order arbitration pursuant to the arbitration agreements contained in the Employee Acknowledgement Forms executed by Plaintiff.

The Court orders further proceedings in this action stayed, and sets a post-arbitration review hearing for November 30, 2018, at 8:30 a.m. in Dept. C15.

Moving parties to give notice.

 

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