(1) Motion to Compel Arbitration (2) CMC

Tentative Ruling: Motion by Defendants Medical Insight, Inc., and Michael Moretti to Compel Arbitration and Request for Stay of Proceedings is GRANTED per Code of Civil Procedure section 1281.2. Plaintiff is ordered to submit the Complaint, and all causes of action alleged therein, to binding arbitration in accordance with the terms of the arbitration provision in the At-Will Employment and Confidentiality Agreement, signed on March 15, 2010 (the “Agreement”). The Court will retain jurisdiction in this action to enforce any arbitration award. This action is stayed pending arbitration. This matter is set for an Arbitration Review Hearing on October 14, 2014, in Dept. C13 at 8:45 am.

Defendants have met their burden of proving an entitlement to compel arbitration under Code of Civil Procedure section 1281.2. The Declaration of Michael Moretti filed with the moving papers establishes that Plaintiff signed the Agreement, and the Agreement contains a binding arbitration agreement covering of “[a]ny controversy arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions, or any other controversy arising out of Employee’s employment, including, but not limited to, any state or federal statutory claims. . . .” (Moretti Decl., ¶ 3, Ex. “A” (Section V, p. 2).)

Plaintiff does not dispute signing the Agreement, or that she has refused to arbitrate this dispute.

Plaintiff’s argument — that her claims for defamation and interference against Defendants are not arbitrable — is unavailing. Plaintiff has the burden, which she has not met, of showing her tort claims are wholly independent of the employment agreement. Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal. App. 4th 1401, 1406-08 [post termination tort claims rooted in the contractual relationship are arbitrable]; Cione v. Foresters Equity Services, Inc. (1997) 58 Cal. App. 4th 625, 642.)

Plaintiff’s own allegations and declaration, in which she explains the basis of her tort claims, establish these tort claims arise from and are rooted in the employment agreement with Defendant and are, therefore, subject to the arbitration agreement. The Agreement prohibits Plaintiff from taking confidential information while employed by Defendant, and Plaintiff’s allegations are that Defendants falsely accused her of taking, and spread rumors that she took, confidential materials. Defendant Moretti is an agent of Defendant Medical Insight, Inc., and can invoke the arbitration agreement. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal. App. 4th 1199, 1210.)

Plaintiff has also failed to establish that the Agreement is both procedurally and substantively unconscionable, which again is her burden to establish. (Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83.)

Plaintiff’s declaration does not establish the Agreement is procedurally unconscionable. The Agreement is six pages long and does not appear to be a standardized contract of adhesion, but rather an agreement containing specific compensation and other terms pertinent to Plaintiff’s employment, including Plaintiff’s salary, bonus, insurance contribution, vacation time, etc. Plaintiff’s declaration states Mr. Moretti presented her with the agreement and told her she had to sign it by the afternoon. (Kraneiss Decl., ¶ 3.) However, no facts whatsoever indicate Plaintiff was coerced in any way, prevented by Defendant from negotiating or rejecting any or all of the terms of the agreement, or was told her continued employment was conditioned on her signing the agreement.

The Agreement is also not substantively unconscionable. The arbitration agreement requires arbitration before a neutral arbitrator from JAMS or AAA, and allows injunctive relief to be sought from the Court by either party. The arbitration does not lack mutuality, provides no limitations on discovery, requires a written award, allows the arbitrator to provide any remedy or relief the arbitrator deems just and equitable, and requires Defendants to pay the arbitration fees.

The only provision of the arbitration agreement that is arguably unenforceable is the attorney fees provision, if interpreted to allow an award of fees to an employee under a statutory claim that does not permit such an award. Here, as Defendants argue, the Agreement only allows an award of attorney fees to the prevailing party “in any proceeding to enforce the terms of this Agreement,” which is not the basis of Plaintiff’s claim. However, to avoid the risk of such interpretation and to appease Plaintiff’s concern, Defendants invite the Court to sever the provision. Where an offending provision is severable, the court may compel arbitration while severing or restricting the objectionable terms. (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal. App. 4th 695, 709-10 [attorney fees provision in arbitration agreement unenforceable but does not vitiate the underlying agreement because it is collateral to the main purpose of the contract and is severable].) The Court, therefore, enforces the arbitration agreement but severs the following provision from the Agreement, Paragraph V, at p. 3: “Employee and Company further agree that in any proceeding to enforce the terms of this Agreement, the prevailing party shall be entitled to its or her reasonable attorneys’ fees and costs (other than forum costs associated with the arbitration) incurred by it or her in connection with resolution of the dispute in addition to any other relief granted.”

Moving Party shall give notice.