Case Number: 19STCV20819 Hearing Date: February 14, 2020 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

julio cesar garcia Jimenez,

Plaintiff,

vs.

755 tacos, llc, et al.,

Defendants.

Case No.:

19STCV20819

Hearing Date:

February 14, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PETITION TO COMPEL ARBITRATION AND STAY ACTION

Background

Plaintiff Julio Cesar Garcia Jimenez (“Plaintiff”) filed this employment action on June 13, 2019 against Defendant 755 Tacos, LLC dba Petite Taqueria (“Defendant”). The Complaint asserts causes of action for failure to pay and provide minimum wages, overtime, double time, rest periods, meal periods, and itemized wage statements. The Complaint also asserts a cause of action for violation of Business and Professions Code section 17200.

Defendant now moves to compel arbitration of all of Plaintiff’s claims and to stay this action pending completion of arbitration, pursuant to a binding arbitration agreement executed by Plaintiff. Plaintiff opposes.

Evidence

The Court rules on Defendant’s evidentiary objections as follows:

Objections 1-2: sustained

Legal Standard

In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. § 2, et seq.; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

Discussion

Existence of Arbitration Agreement

A party moving to compel arbitration can establish that an arbitration agreement exists simply by attaching a copy of the agreement to its petition without necessarily following the “normal procedures of document authentication.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058; see also Condee v. Longwood Management Corp., supra, 88 Cal.App.4th at p. 219 [“A plain reading of the statute indicates that as a preliminary matter the court is only required to make a finding of the agreement’s existence, not an evidentiary determination of its validity.”].)

Defendants presents evidence that when Plaintiff was hired on January 24, 2018, he signed a Pre-Dispute Resolution/Arbitration Agreement, expressly agreeing to submit claims against Defendant arising out of his employment to arbitration. (Overgard Decl., ¶ 4, Ex. A.) The arbitration agreement provides that “in consideration for” Plaintiff’s employment with Defendant, he “waive[s] [his] right to a jury trial and agree that dispute relating to [his] employment, or the termination of such employment . . . shall be decided by a mutually agreed-upon Arbitrator in final and binding individual arbitration in accordance with the Federal Arbitration Act . . . .” (Overgard Decl., ¶ 4, Ex. A.)

Plaintiff argues that the arbitration agreement is ineffective because it does not identify Defendant as a party. However, as noted by Defendant, Defendant is specifically identified in the first paragraph of the arbitration agreement, and Defendant signed the arbitration agreement. Moreover, the evidence shows that Defendant intended to be bound by the agreement because Defendant presented it as part of the hiring process. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 398 [employer’s intent to be bound can be evidenced by the fact that it presented the arbitration agreement “as part of its New Hire packet”].)

Accordingly, the Court finds that Defendant has established that an arbitration agreement exists and that it covers the claims asserted by Plaintiff in this lawsuit.

Grounds to Deny Arbitration

Plaintiff contends that the arbitration agreement is procedurally and substantively unconscionable, and therefore cannot be enforced against him.

Procedural unconscionability concerns the manner in which the contract was negotiated and the parties’ circumstances at that time. It focuses on the factors of oppression or surprise. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.) “Oppression 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.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 [quotations and citations omitted].) Surprise occurs “where the allegedly unconscionable provision is hidden within a prolix printed form.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 247.)

Plaintiff contends that the arbitration agreement is procedurally unconscionable because it was presented on a take-it-or-leave-it basis. While it is true that “the existence of contract of adhesion supports a finding of procedural conscionability,” the court must still weigh the level of procedural unconscionability against any substantive unconscionability to determine whether the agreement can be enforced. (Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 723.) “When … there is no other indication of oppression or surprise, ‘the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’” (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704 (emphasis added).)

Next, Plaintiff argues that the arbitration agreement is procedurally unconscionable because Defendant failed to provide a copy of the applicable arbitration rules with the agreement. It is generally true that failure to provide a copy of the arbitration rules supports a finding of procedural unconscionability, but only if the unconscionability claim “depended in some manner on the arbitration rules in question.” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246.) Here, the arbitration agreement provides that the applicable rules of arbitration are the AAA rules. Nevertheless, Plaintiff does not challenge any of the AAA rules and does not argue that any of the AAA rules are substantively unconscionable, so the Court finds that the failure to attach those rules does not affect the unconscionability analysis.

Plaintiff also argues that the arbitration agreement is procedurally unconscionable because a Spanish translation of the agreement was not provided to Plaintiff before he signed. Plaintiff contends that Defendant knew that Plaintiff did not read English. But there is no competent evidence that Plaintiff required a Spanish language translation of the agreement or that Plaintiff requested a Spanish language translation of the agreement. (See Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1248 [finding no procedural unconscionability where there was no evidence that the employees “did not understand the subject agreements, that they requested Spanish translations of the agreements, that they would have benefited from Spanish translations, or that translations were never provided”].)

“Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided. A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be so one-sided as to ‘shock the conscience.” (Carmona v. Lincoln Millennium Car Wash, Inc., supra, 226 Cal.App.4th at p. 85 (quotation and citation omitted).) “[T]he paramount consideration in assessing [substantive] conscionability is mutuality.” (Ibid. (brackets in original).)

Plaintiff contends that the agreement is substantively unconscionable because it lacks mutuality. But Plaintiff points to a provision in the agreement requiring Defendant to bring claims against Plaintiff in an arbitral forum. This does not suggest lack of mutuality. Plaintiff also argues that the mutual attorney fee provision in the agreement is substantively unconscionable because it does not take into account that the Labor Code does not provide for a prevailing employer to recover fees from an employee. But as noted by Defendant, the agreement provides that the “Arbitrator shall apply the substantive law that would have applied had the dispute been heard in a court of law and shall have the authority to award such relief as may be available in a court of law.” (Overgard Decl., ¶ 4, Ex. A, ¶ 2(iv).)

Based on the foregoing, the court finds that Plaintiff has not demonstrated a high level of substantive unconscionability. In light of the finding of only a low level of procedural unconscionability, the court finds that Plaintiff has not met his burden of demonstrating that the arbitration agreement is unconscionable.

Conclusion

For the foregoing reasons, Defendant’s motion to compel arbitration is granted.

___ The parties stipulate that the matter may be dismissed without prejudice but the Court will retain jurisdiction to vacate, confirm or hear any other postarbitration motions. Any applicable statutes of limitation will be tolled during the pendency of the arbitration and any subsequent motions pertaining thereto.

Defendant is ordered to provide notice of this Order.

DATED: February 14, 2020

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court