Case Number: 19STCV37661 Hearing Date: February 20, 2020 Dept: 47

Angel Lopez v. LAD-MB, LLC dba Downtown LA Motors, et al.

CASE NO.: 19STCV37671

MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendants LAD-MB, LLC dba Downtown LA Motors and Lithia Motors, Inc.

RESPONDING PARTY(S): Plaintiff Angel Lopez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he was demoted from maintenance employee to car washer, after which he developed pain in his neck, back, and left ring finger due to the physically demanding duties. He alleges age and disability discrimination and related claims.

Defendants LAD-MB, LLC and Lithia Motors move to compel arbitration.

TENTATIVE RULING:

Defendants LAD-MB, LLC dba Downtown LA Motors and Lithia Motors, Inc.’s motion to compel arbitration is GRANTED. The action is stayed pending conclusion of the arbitration.

Any and all future dates are advanced and vacated. A Status Conference/OSC re: Dismissal is set for February 19, 2021 at 8:30 a.m. If there are no appearances and/or the parties have not completed the arbitration without good cause, this case may be dismissed.

Moving party to give notice, unless waived.

DISCUSSION:

Motion To Compel Arbitration

Plaintiff’s Evidentiary Objections

Declaration of Christine Collinet

No. 1: OVERRULED. The entire declaration does not lack foundation.

Nos. 2-3: OVERRULED. Sufficient foundation based on the declarant’s position and experience. Not irrelevant. Not inadmissible hearsay.

No. 4: OVERRULED. Sufficient foundation.

No. 5: OVERRULED. Sufficient foundation. Not irrelevant. Not inadmissible hearsay.

No. 6-7: OVERRULED. Sufficient foundation.

No. 8: OVERRULED. Sufficient foundation. Not irrelevant. Not inadmissible hearsay.

Exhibit “A” to Declaration of Christine Collinet

No. 9: OVERRULED. As discussed below, document need not be authenticated in the traditional manner. Not inadmissible hearsay.

Declaration of Tim Endo

No. 10: SUSTAINED, but on the ground that this is inadmissible legal opinion (that Plaintiff “agreed” to a binding arbitration).

Nos. 11, 13: OVERRULED. Not irrelevant. Sufficient foundation. Document need not be traditionally authenticated, as discussed below.

No. 12: OVERRULED. Sufficient foundation.

Exhibit “A” to Declaration of Tim Endo

No. 14: OVERRULED for the reasons discussed in connection with No. 9 above.

Exhibit “B” to Declaration of Tim Endo

No. 15: OVERRULED for the reasons discussed in connection with No. 9 above.

Existence of Arbitration Agreement

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendants seek to compel arbitration based upon a “Binding Arbitration Agreement” that is part of the at-will employment agreement attached as Exhibit A to the Declaration of Christine Collinet, which provides:

I also acknowledge that the Company utilizes a system of alternative dispute resolution which involves binding arbitration to resolve all disputes which may arise out of the employment context. . . . I and the Company both agree that any claim, dispute, and/or controversy that either party may have against one another (including, but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, as well as all other applicable state or federal laws or regulations) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between myself and the Company (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company, whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under my state’s workers’ compensation laws, and Employment Development Department claims) shall be submitted to and determined exclusively by binding arbitration. In order to provide for the efficient and timely adjudication of claims, the arbitrator is prohibited from consolidating the claims of others into one proceeding. This means that an arbitrator will hear only my individual claims and does not have the authority to fashion a proceeding as a class or collective action or to award relief to a group of employees in one proceeding. Thus, the Company has the right to defeat any attempt by me to file or join other employees in a class, collective or joint action lawsuit or arbitration (collectively “class claims”).

(Collinet Decl., Exh. A.)

The end of this agreement states “[b]y acknowledging below, you have agreed that you have read and understood the above disclosure.” Plaintiff’s name is then typed, and a box is checked that is labeled “Signature,” with a statement below the box that “[c]hecking the checkbox above is equivalent to a handwritten signature.” (Ibid.)

In addition, Defendants have presented evidence of two agreements with handwritten signatures next to Plaintiff’s printed name: two Hourly/Salary Compensation Plans, signed March 5, 2019 and June 7, 2019 respectively. Those documents include the following language:

In addition, by placing my Signature below, I and the Company understand and voluntarily acknowledge that any claims/disputes that I may have regarding the terms of my own pay plan, my employment, termination from employment (including claims of discrimination and/or harassment), or any other association I have with the Company that either of us might have against one another shall be submitted exclusively to final and binding individual arbitration in accordance with this Acknowledgment and the Company’s Comprehensive At-Will Employment and Arbitration Agreement (“Comprehensive Agreement”), which I am required to sign at the time of hire and which is contained in the most recent version of the Company’s Employee Handbook which is available at (insert website). To the extent there is a conflict between this Acknowledgment and the Comprehensive Agreement, the Comprehensive Agreement controls.

I further agree that such arbitration shall be conducted on an individual basis with respect to my claims only, not a class, collective or representative basis, and hereby waive any right to bring and/or participate in any class-wide, collective or representative claims before any arbitrator or in any forum except to the extent a representative action under the California Private Attorney General Act is, as a matter of law, not deemed subject to a such waiver. . . .

I understand and agree that by entering into this Arbitration Agreement I and the Company are waiving our respective right to bring such claims to state or federal court, including any right to a jury trial.

(Declaration of Tim Endo, Exhs. A & B.)

The evidence presented by Defendants shows that Plaintiff agreed to submit his claims against Defendant to binding arbitration. Thus, the burden shifts to Plaintiff to show that a valid arbitration agreement does not exist.

Most of Plaintiff’s arguments relate to the enforceability of the agreement, not its existence. Those arguments – for example, that Plaintiff signed the agreement under duress because it was a condition of his employment and that it was hidden in fine print – are discussed in connection with unconscionability below.

As to the existence of an agreement, Plaintiff first argues that no agreement to arbitrate exists because he did not expressly consent to execute the arbitration agreement by electronic means. Plaintiff relies on J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974 to support this argument. However, as Plaintiff acknowledges (Oppo., at p. 4), J.B.B. recognizes that an agreement to formalize a transaction electronically may be “based on the context and surrounding circumstances, including the conduct of the parties.” (Id. at 989 [quoting CACI No. 380].)

Here, the Declaration of Christine Collinet, the Director of Recruiting for the company that provides administrative support to both moving Defendants, explains Lithia Motors, Inc.’s onboarding process, through which new employees are required to electronically complete several forms and agreements. (Declaration of Christine Collinet ¶¶ 6-11.) The Collinet Declaration also states that Plaintiff electronically signed the required agreements. (Id. ¶¶ 13-18.) Given the circumstances, under which Plaintiff was required to sign these forms before he could begin his employment, and Defendant’s records indicate that Plaintiff electronically executed the forms, it follows that Plaintiff’s signature within the record was “executed or adopted” by him “with the intent to sign the electronic record.” (Civ. Code § 1633.2(h) [defining “electronic signature” for purposes of the UETA].)

In addition, as discussed above, Defendants have presented evidence of two agreements that contain a handwritten signature next to Plaintiff’s name. Although Plaintiff contests these agreements on other grounds, they cannot be contested on grounds related to electronic signatures, as they were signed by hand.

Second, Plaintiff argues that Defendants failed to authenticate the agreements. However, “[f]or purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) “[A]s a preliminary matter, the court is only required to make finding of the agreement’s existence, not an evidentiary determination of its validity.” (Id. at 219.)

If Plaintiff had denied that the signatures on the agreements were his, there might have been a factual dispute, but Plaintiff never argues that his signatures were forged or otherwise not authentic or that he did not electronically sign the agreement; he argues that he was essentially forced to sign the agreements under duress. (Declaration of Angel Lopez ¶¶ 3-7.) That is not the same as contesting their authenticity. (Cf. id. at 218 [noting that “although no evidence was ever introduced to verify the signature’s authenticity, it was never challenged”].) Nor does the agreement attached to the motion have to be the original; a copy will suffice. (Cox v. Bonni (2018) 30 Cal.App.5th 287, 301.)

Third, Plaintiff argues that his signature was obtained by fraud because he did not know that he was signing an arbitration agreement and he was never provided copies of the documents in English or Spanish. In particular, Plaintiff indicates that he does not understand English and the documents were only presented in English; therefore, he never read them. However, the general rule is that a party who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710.) As a result, Plaintiff cannot avoid the arbitration agreement by claiming he did not understand it or read it.

Plaintiff also argues that, even if the agreement exists, it is invalid because he was coerced into signing it because it was presented to him as a condition of employment. This argument is discussed below in the context of unconscionability.

On balance, Defendants have met their burden of showing by a preponderance of the evidence that the parties entered into an arbitration agreement. The question remains, however, whether the parties agreed to arbitrate under the FAA and which of Plaintiff’s claims are subject to arbitration.

Applicability of the FAA

Here, neither party appears to contest that the agreement is governed by both the FAA and California arbitration law and procedure.

The agreement states “I acknowledge that the Company’s business and the nature of my employment in that business affect interstate commerce. I agree that the arbitration and this Agreement shall be controlled by the Federal Arbitration Act, in conformity with the procedures of my state’s arbitration laws and procedures (or if my state does not have applicable arbitration laws, the California Arbitration Act (Cal. Code Civ. Proc. Sec. 1280 et seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery)).” (Collinet Decl., Exh. A, at p. 2 [unnumbered].) Likewise, the Hourly/Salary Compensation Plan documents state that the arbitration proceedings “shall be governed by the Federal Arbitration Act, and carried out in conformity with the procedures of the California Arbitration Act.” (Endo Decl., Exhs. A, B.)

An arbitration clause is governed by the FAA if the agreement is a contract “evidencing a transaction involving commerce.” (9 U.S.C. § 2.) Courts “broadly construe” this phrase, because the FAA “embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” (Giuliano v. Inland Empire Pers., Inc. (2007) 149 Cal.App.4th 1276, 1286.)

In the context of an employment agreement, this means that the Court looks only to whether the parties’ relationship “in fact” involved interstate commerce, as opposed to whether they contemplated that it would:

In determining whether the employment agreement involved interstate commerce, the parties’ subjective intent is not the determining factor. “[E]videncing a transaction involving commerce” (9 U.S.C. § 2) simply means that “the ‘transaction’ in fact ‘involv[es]’ interstate commerce, even if the parties did not contemplate an interstate commerce connection.” (Allied–Bruce Terminix Companies v. Dobson (1995) 513 U.S. 265, 281, 115 S.Ct. 834, 130 L.Ed.2d 753 (Allied–Bruce ).)

(Giuliano, supra, 149 Cal.App.4th at 1286.)

Defendants have the “burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207.) Defendants have not attempted to do so here, beyond presenting the agreements themselves, which state that both the FAA and California law and procedure apply. Plaintiff has not contested this point in his opposition.

Thus, the Court finds that both the FAA and California arbitration law and procedure govern the parties’ agreement. Having reached this conclusion, the Court now considers which of Plaintiff’s claims must be arbitrated.

Claims To Be Arbitrated

Plaintiff alleges six causes of action: (1) discrimination in violation of Gov’t Code §§ 12940 et seq.; (2) retaliation in violation of Gov’t Code §§ 12940 et seq.; (3) failure to prevent discrimination and retaliation in violation of Gov’t Code § 12940(k); (4) failure to provide reasonable accommodations in violation of Gov’t Code §§ 12940 et seq.; (5) failure to engage in a good faith interactive process in violation of Gov’t Code §§ 12940 et seq.; and (6) declaratory judgment.[1]

As discussed above, the agreement provides as follows:

I also acknowledge that the Company utilizes a system of alternative dispute resolution which involves binding arbitration to resolve all disputes which may arise out of the employment context. . . . I and the Company both agree that any claim, dispute, and/or controversy that either party may have against one another (including, but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, as well as all other applicable state or federal laws or regulations) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between myself and the Company (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company, whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under my state’s workers’ compensation laws, and Employment Development Department claims) shall be submitted to and determined exclusively by binding arbitration. In order to provide for the efficient and timely adjudication of claims, the arbitrator is prohibited from consolidating the claims of others into one proceeding. This means that an arbitrator will hear only my individual claims and does not have the authority to fashion a proceeding as a class or collective action or to award relief to a group of employees in one proceeding. Thus, the Company has the right to defeat any attempt by me to file or join other employees in a class, collective or joint action lawsuit or arbitration (collectively “class claims”).

(Collinet Decl., Exh. A (bold emphasis added).)

Plaintiff’s causes of action under FEHA are therefore explicitly mentioned in the agreement, and his related declaratory judgment cause of action also falls within the broad contractual language including claims “arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company, whether based on tort, contract, statutory, or equitable law, or otherwise.” Thus, all of Plaintiff’s causes of action appear to fall within the scope of the agreement, and Plaintiff does not argue otherwise.

The remaining question, then, is whether any of these causes of action are not arbitrable due to applicable public policy or other reasons.

Plaintiff’s first through fifth causes of action are FEHA claims, and those are arbitrable, along with the related declaratory judgment cause of action. (See, e.g., Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 397 [“Cruise’s statutory causes of action against Kroger pursuant to FEHA (Gov. Code, § 12900 et seq.) for retaliation, sexual harassment, sexual and racial discrimination, failure to investigate and prevent harassment and retaliation, as well as her common law claims for wrongful termination in violation of public policy, intentional infliction of emotional distress and defamation, are all ‘employment-related disputes’ within the meaning of the above arbitration clause, and therefore clearly are covered disputes subject to the arbitration agreement.”].)

The remaining question, then, is whether the agreement is unenforceable due to unconscionability.

Unconscionability

Plaintiff argues that the agreement is unconscionable and therefore unenforceable.

Substantive Unconscionability

“A provision is substantively unconscionable if it ‘involves contract terms that are so one-sided as to “shock the conscience,” or that impose harsh or oppressive terms.’ [Citation.] The phrases ‘harsh,’ ‘oppressive,’ and ‘shock the conscience’ are not synonymous with ‘unreasonable.’ Basing an unconscionability determination on the reasonableness of a contract provision would inject an inappropriate level of judicial subjectivity into the analysis. ‘With a concept as nebulous as “unconscionability” it is important that courts not be thrust in the paternalistic role of intervening to change contractual terms that the parties have agreed to merely because the court believes the terms are unreasonable. The terms must shock the conscience.’ [Citations.]”

(Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 647-48.)

Where a party seeks to arbitrate nonwaivable statutory civil rights in the workplace,[2] such as the FEHA claims involved here, there are “five minimum requirements for the lawful arbitration of such rights” under a mandatory employment arbitration agreement:

Such an arbitration agreement is lawful if it “(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 102.)

(1) Neutral arbitrators:

The Agreement provides that the arbitrator “shall be a retired state court Judge from my state and shall be subject to disqualification on the same grounds as would apply to a judge of such court.” (Collinet Decl., Exh. A, at p. 2 [unnumbered].) There is no reason to believe that these requirements would result in an arbitrator who is not neutral. Thus, this requirement is satisfied.

(2) More than minimal discovery:

“Adequate discovery is indispensable for the vindication of statutory claims. (Citation omitted.) “‘[A]dequate’ discovery does not mean unfettered discovery ….” (Citation omitted.) And parties may “agree to something less than the full panoply of discovery provided in Code of Civil Procedure section 1283.05.” (Citation omitted.) However, arbitration agreements must “ensure minimum standards of fairness” so employees can vindicate their public rights. (Citation omitted).” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 715-16 (bold emphasis added).)

The Agreement provides that the California Arbitration Act will apply, including “section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery.” (Collinet Decl., Exh. A, p. 2 [unnumbered].) Thus, this requirement is satisfied.

(3) Written award:

The agreement provides that the arbitrator’s awards “shall include the arbitrator’s written reasoned opinion.” (Ibid.) Thus, this requirement is satisfied.

(4) All types of relief available in court:

The agreement provides that the arbitration will be governed by “all rights to resolution of the dispute” that apply in “civil actions in my state’s courts.” (Ibid.) Thus, this requirement is satisfied.

(5) Does not require employee to pay unreasonable costs or any arbitrator’s fees or expenses as a condition to access to arbitration:

The agreement provides that the “arbitrator’s fees and costs unique to arbitration shall be borne by the Company.” (Ibid.) Thus, this requirement is satisfied.

As such, the Armendariz requirements are satisfied, and the agreement is not substantively unconscionable.

Procedural Unconscionability

Because the agreement is not substantively unconscionable, the Court need not reach procedural unconscionability.

To briefly recapitulate the principles of unconscionability, the doctrine has both a “procedural” and a “substantive” element,’ the former focusing on “oppression” or “surprise” due to unequal bargaining power, the latter on “overly harsh” … or “one-sided” results.” [Citation.] The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “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.” … [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided. (Citation omitted.)

Under this approach, both the procedural and substantive elements must be met before a contract or term will be deemed unconscionable. Both, however, need not be present to the same degree. A sliding scale is applied so that “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”

(Walnut Producers, supra, 187 Cal.App.4th at 645 (bold emphasis added).)

Thus, the agreement is enforceable.

In addition, even if the Court had reached Plaintiff’s claim of procedural unconscionability, Plaintiff has only made a slight showing of procedural unconscionability, which would require a much stronger showing of substantive unconscionability than is possible here.

Plaintiff argues that the agreement is procedurally unconscionable because it was a non-negotiated employment agreement, presented on a “take it or leave it” basis that he was forced to sign as a condition of employment. This presents a minimal degree of procedural unconscionability:

“The procedural element of the unconscionability analysis concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] The element focuses on oppression or surprise. [Citation.] ‘Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice.’ [Citation.] Surprise is defined as ‘“the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.”’ [Citation.]” (Citation omitted.)

Plaintiffs claim the Agreement is procedurally unconscionable because it is an adhesion contract. An adhesion contract is “a standardized contract … imposed upon the subscribing party without an opportunity to negotiate the terms.” (Citation omitted.) “The term signifies 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. [Citation.]” (Citation omitted.)

The California Supreme Court has consistently stated that “‘[t]he procedural element of an unconscionable contract generally takes the form of a contract of adhesion … .’ ” (Citations omitted.)

“Whether the challenged provision is within a contract of adhesion pertains to the oppression aspect of procedural unconscionability. A contract of adhesion is “imposed and drafted by the party of superior bargaining strength” and “relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Citations omitted.) “[A]bsent unusual circumstances, use of a contract of adhesion establishes a minimal degree of procedural unconscionability notwithstanding the availability of market alternatives.” (Citation omitted.)

(Walnut Producers of California, supra, 187 Cal.App.4th at 645-46 (bold emphasis added).)

Plaintiff also argues that no one explained to him what was in the Agreement or the consequences if he signed it. The failure to explain the meaning of arbitration only presents a slight degree of procedural unconscionability. (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 249-50.) Moreover, “[a]n arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

“It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.”

. . .

Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it.

(Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163.)

The Court finds that there is only a slight degree of procedural unconscionability in the agreement. Therefore, Plaintiff would have had to demonstrate a great degree of substantive unconscionability under the sliding scale approach to render the agreement unenforceable. Because Plaintiff has not done so, the Court finds that the arbitration agreement is enforceable.

Accordingly, Defendants’ motion to compel arbitration is GRANTED.

The action is stayed pending conclusion of the arbitration.

Any and all future dates are advanced and vacated. A Status Conference/OSC re: Dismissal is set for February 19, 2020 at 8:30 a.m. If there are no appearances and/or the parties have not completed the arbitration without good cause, this case may be dismissed.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 20, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] Both the third and fourth causes of action in the complaint are labeled the third cause of action, so the body of the complaint appears to contain only five causes of action but actually contains all six causes of action listed in the caption.

[2] “Initially, we see no reason why Armendariz’s “particular scrutiny” of arbitration agreements should be confined to claims under FEHA. Rather, under the Supreme Court’s analysis, such scrutiny should apply to the enforcement of rights under any statute enacted ‘for a public reason.’” (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 180.)