Filed 5/6/20 Velasco v. Volt Management Corp. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JOSE VELASCO,

Plaintiff and Respondent,

v.

VOLT MANAGEMENT CORP. et al.,

Defendants and Appellants.

B293190

(Los Angeles County

Super. Ct. No. BC699480)

APPEAL from an order of the Superior Court of Los Angeles County, Robert S. Draper. Reversed.

Littler Mendelson, Michael A. Gregg, and Joanne J. Kim for Defendants and Appellants Volt Management Corp. and Volt Information Services, Inc.

Allen Matkins Leck Gamble Mallory & Natsis, Amy Wintersheimer Findley, and Matthew J. Marino for Defendant and Appellant Bumble Bee Foods.

Law Offices of Ramin R. Younessi, Ramin R. Younessi, Liliuokalani H. Martin, and Samvel Geshgian for Plaintiff and Respondent.

___________________________________

In this case an employment contract contained unambiguous clauses setting forth the parties’ agreement to arbitrate employment disputes, and arguably ambiguous clauses concerning a waiver and confirmation of any award. When Jose Velasco sued his employers, the court denied their motions to compel arbitration, reasoning that the waiver clause was so ambiguous as to preclude any meeting of the minds on the agreement as a whole.

We reverse. Under the Federal Arbitration Act, where (as here) the parties agree to arbitrate employment disputes and to delegate questions concerning the existence, scope or validity of the arbitration agreement, any ambiguity created by the waiver or confirmation clauses must be addressed by the arbitrator. The trial court thus erred in denying the motion to compel arbitration.

BACKGROUND

A. Arbitration Agreement

Volt Information Sciences and its subsidiary Volt Management Corporation (collectively Volt) provide staffing services nationwide. Bumble Bee Foods LLC sells seafood nationwide. In 2015, Volt hired Velasco to work for Bumble Bee.

Velasco signed two versions of an employment contract with Volt, one in English and one in Spanish

1. Identical Arbitration and Delegation Provisions

The employment contract contained an arbitration agreement, comprising, as pertinent here, four provisions:

The first provision (hereafter “arbitration clause”) stated that “[a]ny employment . . . disputes . . . shall be settled by final and binding arbitration” pursuant to the Federal Arbitration Act (9 U.S.C. §§ 1-16; FAA).

The second provision (“delegation clause”) stated that arbitration would be conducted “in accordance with the employment rules of the American Arbitration Association [AAA] rules.” AAA rules delegate to the arbitrator “power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.”

The English and Spanish versions of the arbitration and delegation clauses were materially identical.

2. Nonidentical Waiver and Award Provisions

The third provision set forth a waiver. The English version of the waiver provided: “The Company and Employee hereby waive our respective rights to trial by jury of any cause of action or defense that each may have against the other or against any Client.” (Italics added.)

The Spanish version provided: “The Company and the Employee hereby waive their respective rights to a trial by jury or any other cause of action or defense that each may have against the other or against any client.” (Italics added.)

Finally, there was an award enforcement clause.

The English language version of the award clause provided: “Judgment upon the arbitrator’s award may be entered in any court having jurisdiction.”

The Spanish version provided: “A trial may be initiated over the arbitrator’s award in any court with jurisdiction.”

It is undisputed that Velasco read neither the English nor Spanish version of the employment agreement before signing it.

B. Litigation

On March 23, 2018, Velasco sued Volt and Bumble Bee for discrimination, retaliation, failure to prevent discrimination and retaliation, failure to provide reasonable accommodations, failure to engage in a good faith interactive process, all under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), and wrongful termination.

Volt, joined by Bumble Bee, moved to compel arbitration. Velasco opposed the motion, arguing the arbitration agreements were unauthenticated, procedurally and substantively unconscionable, and void due to fraud in the execution.

The trial court rejected Velasco’s arguments but found that the Spanish version set forth a “far more expansive waiver” than the English version, precluding any meeting of the minds. The court stated, “Because it appears by the differing terms of the Spanish and English contracts that the parties did not ‘agree upon the same thing in the same sense,’ the Court cannot enforce either agreement.” It therefore denied defendants’ motion to compel arbitration.

Volt and Bumble Bee appeal. (Velasco does not contest on appeal Bumble Bee’s standing to enforce the arbitration agreement.)

DISCUSSION

Adopting the trial court’s rationale, Velasco argues the “of”/“or” discrepancy in the English and Spanish versions of the waiver creates an existential ambiguity that precludes any meeting of the minds, and thus any agreement. We disagree because that decision was reserved for the arbitrator.

Section 2 of the FAA provides: “A written provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; hereafter sometimes “§ 2.”)

A provision may be deemed unenforceable, for example, due to lack of mutual assent. (Code Civ. Proc., § 1281; see Civ. Code, §§ 1550, 1565.) “ ‘Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts.’ ” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 422.)

“There are two types of validity challenges under [the FAA]: ‘One type challenges specifically the validity of the agreement to arbitrate,’ and ‘[t]he other challenges the contract as a whole’ ” (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70 (Rent-A-Center), for example on the ground that the agreement lacked mutual assent.

A challenge to the contract as a whole may invalidate an arbitration clause only when the alleged infirmity infecting the whole contract applies equally to the arbitration clause. “That is because § 2 states that a ‘written provision’ ‘to settle by arbitration a controversy’ is ‘valid, irrevocable, and enforceable’ without mention of the validity of the contract in which it is contained. Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. ‘[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.’ ” (Rent-A-Center, supra, 561 U.S. at pp. 70-71.)

The objective intent of contracting parties is a legal question determined solely by reference to the contract’s terms, if possible. (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126.) When the evidence presented to the trial court was undisputed, we review the court’s determination of the validity of an agreement de novo. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1567.)

Here, the parties unambiguously agreed that “[a]ny employment . . . disputes . . . shall be settled by final and binding arbitration.” They further agreed unambiguously to incorporate AAA rules, which delegate questions about the existence, scope or validity of the arbitration agreement to the arbitrator.

Velasquez contests neither of these provisions. He challenges only the waiver, arguing it “outright precludes” him “from even bringing a claim or asserting a defense,” even in arbitration, thus “effectively depriving [him] of any remedy or relief.”

In other words, Velasco argues that the waiver of trial “or” any cause of action (Spanish version) effectively waives both trial and arbitration, which directly contradicts the arbitration clause and negates the entire agreement. He further argues “the inclusion of the delegation clause did not render the trial court powerless” to interpret the waiver clause. The argument is without merit.

Preliminarily, we note that neither Volt nor Bumble Bee has ever asserted that Velasquez possesses no arbitration remedy.

In any event, “[s]ection 2 operates on the specific ‘written provision’ to ‘settle by arbitration a controversy’ that the party seeks to enforce.” (Rent-A-Center, supra, 561 U.S. at p. 72.) Accordingly, because Velasco does not challenge the arbitration or delegation clauses specifically, we must treat them as valid, “leaving any challenge to the validity of the [a]greement as a whole for the arbitrator,” even if that ambiguity could undermine the arbitration clause itself. (Ibid.)

In sum, the parties unambiguously agreed to arbitrate employment-related claims, notwithstanding possible ambiguities regarding whether the different translations of the waiver clause undermined the arbitration agreement itself. Defendants’ motion to compel arbitration therefore should have been granted, because the effect of the waiver clause and other aspects of the agreement were to be interpreted by the arbitrator, not the court.

DISPOSITION

The order is reversed, with directions to enter a new order granting defendants’ motion to compel arbitration. Parties to bear their own costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J. WEINGART, J.*