Case Number: BC531368 Hearing Date: May 21, 2014 Dept: 46

Case Number: BC531368
JEFFREY FUJIMOTO VS CALIBER BODY WORKS INC
Filing Date: 12/23/2013
Case Type: Other Employment Complaint (General Jurisdiction)
Status: Pending
Future Hearings

05/21/2014 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
Motion to Compel Arbitration and Stay Action Pending Completion of Arbitration

TENTATIVE RULING: Motion to compel binding arbitration of the matters stated in the Complaint is GRANTED pursuant to CCP §1281.2. The Motion to stay the proceedings pending the resolution of the arbitration is GRANTED pursuant to CCP §1281.4. [Matter to be placed on “suspense” status and review hearing and status conference regarding completion of arbitration shall be set for 06/05/2015 at 8:30 a.m. in Dept. 46.]

DISCUSSION

Defendant has proven the existence of a valid agreement to arbitrate the claims in this case. On 8/7/02, Plaintiff executed a document entitled “Applicant Pre-Employment Statements,” which included the following paragraph (hereinafter, “the Agreement”):

“I hereby agree to submit to binding arbitration all disputes and claims arising out of the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the American Arbitration Association. This application contains the entire agreement between parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.” (Declaration of Paula Miller [hereinafter, “Miller”], Exhibit “1,” p. 4,) [emphasis added]

This contractual arbitration clause, subject to determination of the claimed defenses thereto, is sufficient to require the employment related causes of action in the complaint filed in this matter to be submitted to binding arbitration. This conclusion is supported by the Federal Arbitration Act, 9 U.S.C. § 2; CCP §1281.2; Blake v. Ecker (2001) 93 C.A.4th 728, 741 [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], and Banner Entertainment, Inc. v. Superior Court (1998) 62 C.A.4th 348, 356-57 [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.]

The agreement to arbitrate is not invalid based upon the defense of unconscionability. “In determining whether an arbitration clause is unconscionable, courts generally apply a two-prong test. [Citations.] They determine whether the clause is procedurally unconscionable and whether it is substantively unconscionable.” Villa Milano Homeowners Assn. v. Il Davorge (2000) 84 C.A.4th 819, 828.

“’[U]nconscionability has both a “procedural” and a “substantive” element. [Citations.] The procedural element focuses on two factors: “oppression” and “surprise.” [Citations.] “Oppression” arises from an inequality of bargaining power which results in no real negotiation and “an absence of meaningful choice.” [Citations.] “Surprise” involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms. [Citations.]’ The substantive prong of unconscionability encompasses ‘“overly harsh” or “one-sided” results.’ Stated another way, ‘[t]he substantive component of unconscionability looks to whether the contract allocates the risks of the bargain in an objectively unreasonable or unexpected manner.’ Both procedural and substantive unconscionability must be present to deny enforcement to the contract, but there may be an inverse relation between the two components, ‘such that the greater the unfair surprise or inequality of bargaining power, the less unreasonable the risk reallocation which will be tolerated.’” Fittante v. Palm Springs Motors, Inc. (2003) 105 C.A.4th 708, 722-723. [emphasis added]

The required second element of substantive unconscionability is lacking here. The agreement pertains mutually to both parties alike, is the only agreement regarding dispute resolution between the parties, applies to all disputes, and is not one-sided or asymmetrical. Also, the last sentence of the quoted portion of the Agreement also contains the sentence, “[t]his application contains the entire agreement between parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written.”

The agreement meets the mutuality requirement as set forth in the cases cited by Plaintiff including Abramson v. Juniter Networks, Inc. (2004) 115 Cal.App.4th 638, 657, Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702; Trivedi 189 Cal.App.4th at 811-812, and the cases cited in the Opposition brief, particularly related to subjective unconscionability at pages 8 – 14. Plaintiff’s argument in reference to these cases mischaracterizes the current arbitration agreement as lacking mutuality, which it does have, and seems to be a boilerplate brief that fails to consider the actual provisions of the subject arbitration agreement and the rules of the American Arbitration Association that it incorporates that meet all the requirements of the parties being equally bound by the agreement, that the arbitration will be conducted by a neutral arbitrator, that the parties shall have adequate opportunity for discovery, that the parties can obtain the same relief through an arbitrator as would be available in court, that the arbitrator must issue a written award that is subject to limited judicial review, and that the payment of the arbitration costs will be made by the employer – Defendant.

Wisdom v. Accentcare, Inc. (2012) 202 C.A.4th 591 has a similar agreement but is distinguishable because the key language of the last sentence of the quoted portion of the arbitration agreement this case (stated above) creates mutuality in application of the duty to arbitrate which was absent in Wisdom. In any event, the Wisdom case cannot be cited as the opinion was depublished. The decision does not appear in the official reports because it was depublished by Wisdom (Melissa) v. Accentcare, Inc., 139 Cal. Rptr. 3d 315, 273 P.3d 513, 2012 Cal. LEXIS 2935 (Cal., 2012). Application was at first granted by Wisdom (Melissa) v. Accentcare, Inc., 2012 Cal. LEXIS 5788 (Cal., May 30, 2012)
but then the review was dismissed by Wisdom v. Accentcare, Inc., 159 Cal.Rptr.3d 84, 303 P.3d 391, 2013 Cal. LEXIS 6229 (Cal., July 24, 2013). Depublished cases cannot be cited. 8.1100(e)(1).

Plaintiff’s reliance on Carmona v. Lincoln Millennium Car Wash, Inc. (Apr. 21, 2014) 2014 WL 1873966 (set forth in his 5/15/14 sur-reply) is misplaced. Unlike the present case, “the car wash companies [in Carmona] have not agreed to arbitrate all employment related disputes when one gets to the enforceability clause. This clause gives the car wash companies the choice of either court or arbitration when pursuing breaches of the confidentiality subagreement and this choice of forums is available only to the car wash companies. The employees would never be in a position to pursue the car wash companies for breach of the confidentiality subagreement. The subagreement defines confidential information and imposes a duty on the employees not to disclose such information, but it does not impose any duties or obligations on the car wash companies. And the employees’ potential exposure to liability for breach is not insignificant, given how broadly the car wash companies have defined confidential information and breach. Confidential information includes things as mundane as pay rates and performance evaluations, and a breach can include sharing information with outsiders and merely sharing information with other employees of the company.” Id. at *6. It further determined that the agreement lacked mutuality with respect to attorney’s fees, with presuming harm to the car wash companies in their confidentiality claims, and by requiring only employees to discuss with the car wash companies “any problems or concerns with anything related to” their employment before disclosing any information to outsiders.