Case Number: BC525997 Hearing Date: June 05, 2014 Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

BORJA, et al. vs. SWIFT, etc., et al. (BC525997)

Counsel for plaintiffs/moving parties: Lawrence Cagney (Krieger, etc.)
Counsel for defendant/opposing party: Anna Stancu (Sheppard, etc.)

Plaintiff Borja and Pennington’s motion to compel arbitration (filed 4/7/14) is GRANTED as to each.

Plaintiffs have shown the existence of arbitration agreements which cover the claims made. As to Borja, defendant has conceded as much, at least as to Borja’s individual claims (the only such claims).

As to Pennington, even assuming for purposes of this motion that the arbitration agreement covers only non-driver employees, Pennington has met his burden to show that during the relevant period, he fits within that category, bringing him within defendant’s ADR policy.

Plaintiffs have shown that Pennington was a non-driver during the relevant limitations period. The complaint (now supported in part by Pennington’s declaration) alleges Pennington as a “yard hostler” from 1995 through April 1, 2013. In his attached declaration, Pennington states he worked in that capacity for the final seven years of his employment and while his duties required him to drive vehicles and equipment around the yard, he was not a driver in the customary sense and his role did not require him to haul customers’ freight from one point to another. Pennington declaration, ¶5, attaching a Performance Counseling Report from 2009 and an Incident Report from 2012, both of which identify him as Lead Yard Man. (Pennington declaration, Ex. 2-3) This contradicts the Monti declaration which indicates that Pennington only worked as a driver in 5 designated driver categories. (Monti declaration, ¶6.) The forms offered with plaintiff’s reply indicate Pennington’s duties were restricted to working in the yard, indicating that he was not driving. Pennington has met his burden to show that his work in the yard was more likely to be true as falling within the category of a non-driver, than that of a driver.

The parties are ordered to submit this dispute to final and binding arbitration pursuant to the terms and conditions of the subject ADR policy. The action is stayed as to Borja and Pennington pending the confirmation of the arbitration award. The court sets a status hearing thereon for 2/18/15 at 8:30 a.m. (the final status conference presently calendared for plaintiff Vega’s case).

The court intends to set an Order to Show Cause re monetary sanctions against defendant and defendant’s counsel for failing to redact what appears to be a litigant’s social security number in violation of CRC 1.20(b)(2)(A).

Notice of ruling by moving party.