Case Number: BC680794 Hearing Date: March 20, 2018 Dept: 53

james taft vs. vivint, inc. , et al.; BC680794, MARCH 20, 2018

[Tentative] Order RE: DEFENDANTS’ MOTION TO COMPEL ARBITRATION

Defendants’ VIVINT, INC. and ANDREW JOHNSON’s Motion to Compel Arbitration is GRANTED.

BACKGROUND

Plaintiff James Taft (“Taft”) brought this action against his former employer, Vivint, Inc. (“Vivint”) and his former manager Andrew Johnson (jointly, “Defendants”) on October 30, 2017. The Complaint asserts causes of action for various violations of the Labor Code, wrongful termination in violation of public policy, and defamation.

Defendants now petition the Court to compel arbitration pursuant to an arbitration agreement entered into by Taft in connection with his employment. Defendants also move to stay this action pending resolution of the arbitration. Taft opposes.

DISCUSSION

A. Existence of an Arbitration Agreement

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 Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.)

Here, there is no dispute that Taft signed a “Mutual Arbitration Agreement” on April 19, 2016 (the “Agreement”), and that a valid arbitration agreement exists. (Miller Decl., ¶ 9, Ex. C.) Defendants contend that the Agreement applies to any employment-related disputes between the parties, including all of the claims raised in his Complaint. Defendants also point to the delegation clause contained in the Agreement, which provides that “any dispute as to the arbitrability of a particular issue or claim pursuant to this Agreement is to be resolved in arbitration.” (Miller Decl., Ex. A at 4.)

B. Ground for Denial

Taft asserts that the delegation clause contravenes California law and cites to Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 171, in support of the proposition that the question of whether grounds exist for the revocation of an arbitration agreement is for the court to decide, not an arbitrator. (Opp’n, p. 7: 1-3.) According to Taft, the “purported power to determine arbitrability in this case is derived from the agreement itself made unenforceable for its multiple provisions that violate public policy.” (Opp’n, p. 7: 15-17.) The Court does not find that Taft’s position is adequately supported by controlling authority. For one, as noted by Defendants, the FAA preempts state laws incompatible with arbitration. (See Iskanian v. CLS Transp. Los Angeles, LLC (2015) 59 Cal.4th 348, 384.) Here, the Agreement is indisputably governed by the FAA. (Miller Decl., Ex. A at 1.) Secondly, the Court must determine the effectiveness of the delegation clause before determining whether the Agreement as a whole is unenforceable. (See Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 242.) In order for a delegation clause to be effective, the language of the delegation clause must be clear and unmistakable and the delegation clause must not be revocable under state contract defenses such as fraud, duress, or unconscionability. (Ibid.)

Here, the Court finds that the language of the delegation clause is clear and unmistakable. As in Tiri, the delegation clause is unambiguous that the arbitrator has “exclusive authority” to resolve any dispute relating to the “interpretation, applicability, enforceability or formation of this Agreement.” (Miller Decl., Ex. A at 4.) As for the second requirement, Taft does not brief this issue specifically, so Taft has failed to proffer any argument that the delegation clause is unconscionable. Even if the Court reads an implicit argument into Taft’s Opposition that the delegation clause was unconscionable, the Court still finds that the clause is not unconscionable. The Court finds that the analysis of unconscionability in Tiri is instructive. As in Tiri, the Court finds that the Agreement was a contract of adhesion because it presented on a take-it-or-leave-it basis. (Tiri, supra, at pp. 245-246.) However, just as in Tiri, the Court finds that the delegation clause is not substantively unconscionable because both parties are bound by it equally. (Id. at pp. 246-247.) Accordingly, the Court finds that the delegation clause is effective, and that any dispute as to the arbitrability of any of Taft’s claims must be presented in arbitration.

CONCLUSION

Based on the foregoing, Defendants’ motion to compel arbitration is GRANTED. All of Taft’s claims against Defendants are ordered to arbitration. This action is stayed pending the completion of arbitration of the arbitrable claims. (CCP §1281.4; 9 U.S.C. §3.) The Court sets a hearing to review the status of the arbitration for December 18, 2018, at 8:30 a.m. in this Department. No later than December 11, 2018. Defendants’ counsel is ordered to lodge with the court an arbitration status report.

Defendants are ordered to provide notice of this ruling.

DATED: March 20, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court