Case Number: 19STCV40953 Hearing Date: February 19, 2020 Dept: 37

HEARING DATE: February 19, 2020

CASE NUMBER: 19STCV40953

CASE NAME: Misha Kim v. AAAZA, Inc., a California Corporation.

MOVING PARTY: Defendant, AAAZA, Inc.

OPPOSING PARTY: Plaintiff Misha Kim

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Arbitration and Stay Proceedings

OPPOSITION: None, as of February 18, 2020

REPLY: No opposition filed

TENTATIVE: AAAZA’s motion to compel arbitration is GRANTED. Plaintiff is ordered to arbitrate her claims against defendants pursuant to the Arbitration Agreement. Plaintiff’s action is stayed pending the completion of arbitration. AAAZA is to provide notice.

Background

This action arises out of Plaintiff, Misha Kim (“Plaintiff”)’s employment with AAAZA, Inc. (“AAAZA”) from approximately March 22, 2016 to January 4, 2019. Plaintiff alleges that she is a 60-year-old Korean female who was employed for media and advertisement planning. Plaintiff alleges that she performed well as was promoted to Senior Media Supervisor on or around December 15, 2016, but that the arrival of Defendant Marsha Lyons (“Lyons”) created a hostile work environment for her, subjecting her to discrimination, harassment, retaliation, and wrongful termination. Specifically, Plaintiff alleges that on several occasions in 2018, Lyons approached her while in the presence of other coworkers and expressed anger about her allegedly poor performance. Plaintiff alleges that as a result of Lyons’ treatment, she was diagnosed with major depressive disorder on or around October 16, 2018 and that as of December 28, 2018, Plaintiff was advised by her doctor to take medical leave for treatment of major depressive disorder. Plaintiff alleges she was terminated when she requested accommodation for treatment of her depression. Further, the Complaint also names Plaintiff’s supervisor, Jeanine Kim (“Kim”) as a defendant.

Plaintiff alleges cause of action as follows: (1) age discrimination in violation of the Fair Housing and Employment Act (“FEHA”) against AAAZA, (2) age harassment in violation of the FEHA against all defendants, (3) disability discrimination in violation of FEHA against AAAZA, (4) disability harassment in violation of FEHA against all defendants, (5) failure to accommodate in violation of FEHA against AAAZA, (6) failure to engage in an interactive process in violation of FEHA, (7) failure to prevent discrimination, harassment and retaliation against AAAZA, (8) retaliation in violation of FEHA against AAAZA, (9) wrongful termination in violation of public policy against AAAZA, (10) violation of Labor Code § 1102.5 against all defendants, (11) intentional infliction of emotional distress, (12) “retaliation for engaging in protected activity” in violation of FEHA against AAAZA.

AAAZA now moves to compel arbitration of Plaintiff’s claims against it. Plaintiff did not file an opposition. Because no opposition was filed, the court will grant the motion and compel arbitration if AAAZA meets its burden.
Discussion
I. Legal Standard

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

In deciding a motion or petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties and then determine whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner … bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].)
II. Existence of an Arbitration Agreement

A motion to compel arbitration or stay proceedings must state verbatim the provisions providing for arbitration or must have a copy of them attached. (Cal. Rules of Court, rule 3.1330.)

A party may demonstrate express acceptance of the arbitration agreement in order to be bound (e.g., Mago v. Shearson Lehman Hutton Inc. (9th Cir. 1992) 956 F.2d 932 [agreement to arbitrate included in job application]; Nghiem v. NEC Electronic, Inc. (9th Cir. 1994) 25 F.3d 1437 [agreement to arbitrate included in handbook executed by employee]; Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105 [88 Cal. Rptr. 2d 664] [employer may terminate employee who refuses to sign agreement to arbitrate]) or implied-in-fact in fact acceptance (Asmus v. Pacific Bell (2000) 23 Cal. 4th 1, 11 [96 Cal. Rptr. 2d 179, 999 P.2d 71] [implied acceptance of changed rules regarding job security]; DiGiacinto v. Ameriko-Omserv Corp. (1997) 59 Cal. App. 4th 629, 635 [69 Cal. Rptr. 2d 300] [implied acceptance of changed compensation rules]). (Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 420 (Craig).)

“A signed agreement is not necessary, however, and a party’s acceptance [of an agreement to arbitrate] may be implied in fact….” (Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 23 (Pinnacle), cited in Pet. Mem. 6.) “An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” (Ibid.)

AAAZA contends that Plaintiff’s action must be arbitrated in its entirety because Plaintiff signed an Arbitration Agreement prior to commencing her employment and the Arbitration Agreement covers all of Plaintiff’s claims against all defendants. (Motion, 3-5.) AAAZA submits the declaration of Emily Flores to demonstrate that an Arbitration Agreement existed. Flores attests that she is currently the Human Resources Administrator for AAAZA and that it is AAAZA’s standard practice to maintain executed arbitration agreements in each employees’ personnel file. (Flores Decl. ¶¶ 2-3; Exhibit C.) Further, Flores attests that she has reviewed Plaintiff’s entire personnel file and confirms that the signature on the Arbitration Agreement matches multiple other documents in Plaintiff’s personnel file. (Flores Decl. ¶ 4.)

The Arbitration Agreement provides in pertinent part as follows:

“I and the Company agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my employment, including but not limited to the termination of my employment end my compensation. I and the Company each specifically waive and relinquish our respective rights to bring a claim against the other in a court of law. Both I and the Company agree that any claim, dispute, and/or controversy that I may have against the Company (or its owners, directors, officers, managers, employees, or agents), or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act {“FAA”), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.45 and all of the Act’s other mandatory and permissive rights to discovery).”

(Flores Decl., Exhibit C.)

Given the foregoing, the court agrees with AAAZA that Plaintiff signed a valid Arbitration Agreement which applies to all of Plaintiff’s claims against AAAZA, Kim and Lyons. As the above indicates, Plaintiff agreed to arbitrate “all disputes that may arise out of or be related in any way to my employment.” Further, the Arbitration Agreement applies to claims against AAAZA “or its owners, directors, officers, managers, employees, or agents.” Moreover, Lyons is alleged to be AAAZA’s media director and Kim is alleged to be Plaintiff’s supervisor. (Complaint, ¶¶ 7(b), 7(e).) Accordingly, Lyons and Kim are “owners, directors, officers, managers, employees or agents” of AAAZA within the meaning of the Arbitration Agreement.

Given the lack of any opposition, AAAZA’s motion to compel arbitration is GRANTED. Plaintiff is ordered to arbitrate her claims against defendants pursuant to the Arbitration Agreement. Plaintiff’s action is stayed pending the completion of arbitration. AAAZA is to provide notice.
III. Conclusion

AAAZA’s motion to compel arbitration is GRANTED. Plaintiff is ordered to arbitrate her claims against defendants pursuant to the Arbitration Agreement. Plaintiff’s action is stayed pending the completion of arbitration. AAAZA is to provide notice.