Case Number: 18STCV00228 Hearing Date: February 05, 2019 Dept: 37

HEARING DATE: February 5, 2019

CASE NUMBER: 18STCV00228

CASE NAME: Rolando Sifuentes, v. Charter Communications, LLC et al.

MOVING PARTY: Defendants TWC Administration LLC and Charter Communications, Inc.

OPPOSING PARTY: Plaintiff Rolando Sifuentes

TRIAL DATE: None

PROOF OF SERVICE: OK

MOTION: Defendants’ Motion to Compel Arbitration

OPPOSITION: Timely filed January 22, 2019

REPLY: Timely filed January 29, 2019

RECOMMENDATION: The court CONTINUES the hearing to March 6, 2019 to allow Plaintiff the opportunity to respond to Defendants’ additional arguments and evidence regarding the onboarding process. Plaintiff may file and serve a 5-page supplemental opposition on this issue by February 19, 2019, and Defendants may file and serve a 3-page reply by February 26, 2019. The parties are ordered to limit any additional briefing to this one issue, and court will not consider additional arguments regarding any other issue that are raised. Counsel for Defendants to give notice.

Background

This employment disability discrimination case arises from allegations that Defendants Charter Communications, Inc. (as successor in interest to TWC Administration LLC and Time Warner Cable Information Services (California), LLC) and Charter Communications, LLC (collectively “TWC”) wrongfully discriminated against and terminated Plaintiff Rolando Sifuentes (“Sifuentes”) on account of a physical disability. Plaintiff alleges he was employed as a Direct Outside Sales Representative when he went on medical leave after he injured his knee. According to the Plaintiff, Defendants sent him a notice informing him that he had voluntarily separated from TWC approximately one week after he submitted a completed employee accommodation request form and physician certification, in which he listed the accommodations necessary to perform his job. Plaintiff asserts that he did not quit his job or indicate that he was unable to return from leave and that he was wrongfully terminated.

In the Complaint, Plaintiff alleges six causes of action for: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”), (2) failure to provide reasonable accommodation in violation of the FEHA, (3) failure to engage in a good faith interactive process in violation of the FEHA, (4) retaliation in violation of the FEHA, (5) failure to prevent discrimination in violation of the FEHA, and (6) wrongful termination in violation of public policy.

Defendants now move to compel Plaintiff’s claims to arbitration and to stay this action pending completion of the arbitration. Plaintiff opposes the motion.
Discussion
I. Legal Standard

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

In deciding a motion to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner … bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].)
II. Existence of an Arbitration Agreement

A motion to compel arbitration or stay proceedings must state verbatim the provisions providing for arbitration, or must have a copy of them attached. (Cal. Rules of Court, rule 3.1330.) Defendants contend that Plaintiff electronically accepted a document titled “Mutual Agreement to Arbitrate” (the “Arbitration Agreement”) on February 13, 2015, in connection with his application process. (Declaration of Harold Quintana (“Quintana Decl.”) ¶ 6, Ex. 1.)

The Arbitration Agreement states, in relevant part:

By accepting employment with Time Warner Cable, you and Time Warner Cable (“TWC,” as defined below) agree that any and all claims, disputes, and/or controversies between you and TWC arising from or related to your employment with TWC shall be submitted exclusively to and determined exclusively by binding arbitration before a single Judicial Arbitration and Mediations Services, inc. [sic] (“JAMS”) arbitrator under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). Examples of such claims include, but are not limited to, claims (1) under the Fair Labor Standards Act (“FLSA”)…. You and TWC further agree that all arbitration proceedings shall be conducted in accordance with the JAMS Employment Arbitration Rules & Procedures and JAMS Policy on Employment Arbitration Minimum Standards of Procedural Fairness. JAMS’ arbitration rules and the location of JAMS’ resolution centers may be found online at the web address provided above in the form of a hyperlink….

(Quintana Decl. Ex. 1.) Plaintiff’s FEHA and employment claims fall within the scope of the Arbitration Agreement.

Plaintiff cites Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047 (Espejo) for the proposition that an employer’s declaration regarding the validity of an employee’s electronic signature on an arbitration agreement must evidence that the employee’s electronic signature could have only come from someone who logged into the employer’s online system with the employee’s unique user name and password. (Opp. 3.)

Defendants argue that Plaintiff did in fact review and accept the Arbitration Agreement concurrent with his acceptance of employment. (Reply 3-4.) On reply, Defendants submit the Declaration of Chance Cassidy (“Cassidy Declaration.”) in which Cassidy attests to the onboarding process required by TWC. Defendants did not present this evidence in their moving papers, and it would be improper for the court to consider this additional evidence at the present hearing because Plaintiff has not had a reasonable opportunity to respond. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].)

In these circumstances, the court finds it appropriate to CONTINUE the hearing to March 6, 2019 to allow Plaintiff the opportunity to respond to Defendants’ additional arguments and evidence regarding the onboarding process. Plaintiff may file and serve a 5-page supplemental opposition on this issue by February 19, 2019, and Defendants may file and serve a 3-page reply by February 26, 2019. The parties are ordered to limit any additional briefing to this one issue, and court will not consider additional arguments regarding any other issue that are raised.