Case Number: BC602650 Hearing Date: June 16, 2016 Dept: 40

Defendant moves to compel arbitration. In opposition, plaintiff focuses on procedural unconscionability largely on the ground that she understands only Chinese.

ANALYSIS

Evidentiary Objections

“A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge.” CRC, rule 3.1354(c).

Here, plaintiff’s written objections do not include a proposed order. Accordingly, the Court should decline to rule on them.

Defendant’s objections should be OVERRULED entirely. The only objectionable material appears to be plaintiff’s statement that she received no consideration, which is a legal conclusion or improper opinion. Obj. No. 5. But this objection also includes plaintiff’s statement that she did not receive a copy of the JAMS Rules, which is an admissible statement. “When a portion of a document is admissible and part inadmissible, an objection to the whole is properly overruled [citations.]” Walls v. Macy’s (1964) 226 Cal.App.2d 29, 30-31. Therefore, the Court should overrule the objection entirely.

Compel Arbitration Standard

When an arbitration agreement is not self-executing (i.e., effective without court order), a party to that agreement wishing to compel the other party to arbitrate may petition the court for an order to that effect. The proceeding to compel arbitration is in essence a suit in equity to compel specific performance of the contract. The petition may be filed in lieu of filing an answer to the complaint and the petitioning defendant has 15 days after any denial of the petition to plead to the complaint. CCP § 1281.7. The petition must allege (1) there is a controversy between the parties, (2) there is a written agreement to arbitrate, and (3) the other party has refused to do so. CCP § 1281.2. The petition must also set forth the written agreement and the arbitration provision verbatim, or a copy of the agreement should be attached. CRC, rule 3.1330.

A petition to compel arbitration is a law and motion proceeding. CRC, rule 3.1103(a)(2). The petition is heard in a summary way as if it were a motion, but notice of the hearing must be given at least 10 days in advance. CCP § 1290.2. Judicial review is limited to a determination whether the party resisting arbitration in fact agreed to arbitrate. State Farm Mut. Auto Ins. Co. v. Superior Court (1994) 23 Cal.App.4th 1297, 1301, 1304. If the court determines that an arbitration agreement exists, arbitration may not be denied on the ground that the petitioner’s contentions lack substantive merit. CCP § 1281.2(c).

When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, and whether it is enforceable. Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413-414.

Arbitration, as a general rule, should be upheld by the court, unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105; O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-491. There is a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. State Farm Mut. Auto. Ins. Co., supra, 23 Cal.App.4th at 1301-1302.

“Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement-either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))-that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” Rosenthal, supra, 14 Cal.4th at 413.
“As the party opposing arbitration, [plaintiff] had the burden of proving that the arbitration provision was unconscionable …. Unconscionability requires a showing of both procedural unconscionability and substantive unconscionability. [Citations]. Both components must be present, but not in the same degree; by the use of a sliding scale, a greater showing of procedural or substantive unconscionability will require less of a showing of the other to invalidate the claim.” Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.

Analysis

Here, defendant presents evidence written, mutually executed arbitration agreement. Lem Decl. 5, Exh. 4. Plaintiff admits signing the written agreement. Chiu Decl. 3. To the extent plaintiff argues Lem’s declaration is insufficient, her evidentiary objections are defective, and she admits signing the agreement. Additionally, plaintiff offers no evidence establishing that Anny Yan, as acting senior HR director, was unauthorized to sign on defendant’s behalf.

Further, although plaintiff argues she did not understand what she was signing, because she “sign[ed] an instrument, which on its face is a contract, [she] is deemed to assent to all its terms.” Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 (holding that contract written in English bound plaintiff who was literate in Greek but not in English). Plaintiff’s inability to read English does not relieve her of the duty to learn the contents of the contract before signing, and she does not cite any authority suggesting otherwise.
Therefore, the Court should find the existence of an arbitration agreement.

Accordingly, the burden shifts to plaintiff to demonstrate both procedural and substantive unconscionability.

Plaintiff offers evidence that the agreement was procedurally unconscionable, such as her not understanding English, supervisors knowing she does not understand English, being forced to sign under threat of termination, being denied an opportunity to review it, and not receiving JAMS rules. Chiu Decl. ¶¶ 2-5. However, “the absence of the [arbitration] rules is of minor significance.” Bigler v. Harker School (2013) 213 Cal.App.4th 717, 737. Additionally, as mentioned above, Plaintiff’s inability to read English does not relieve her of the duty to learn the contents of the contract before signing, and she does not cite any authority suggesting otherwise. Randas, supra, 17 Cal.App.4th at 163. Nonetheless, some facts, such as being compelled to sign under threat of termination, demonstrate that the contract was adhesive and procedurally unconscionable.

Plaintiff, however, fails to offer any cognizable reason to establish substantive unconscionability. Plaintiff asserts the agreement is overly harsh and one-sided because she “will not get the statutory relief provided by the Legislator [sic] to a protected FEHA case (physical disability), and she will not have her day in Civil Court in connection with being a victim of disability discrimination at her workplace.” OPP 7:14-18. But plaintiff fails to identify any language in the agreement supporting her claim, such as an exclusion of certain types of damages available in arbitration, nor is any apparent upon independent review. Also, typically, a plaintiff argues one-sidedness on the ground that the employee is limited to arbitration but the employer may bring claims that would typically be brought by an employer against an employee in court. Plaintiff advances no such argument.

Therefore, Plaintiff fails to establish any substantive unconscionability and, consequently, fails to meet her burden of invalidating the agreement by unconscionability.

The motion is GRANTED, and the Court sets a post-arbitration status conference on December 7, 2016..