2014-00168533-CU-OE

Janeice Thomas vs. Checksmart Financial, LLC

Nature of Proceeding: Motion to Compel Arbitration

Filed By: DeCristoforo, Anthony J.

Defendant Checksmart Financial, LLC’s Motion to Compel Arbitration of claims of certain putative class members is denied.

This lawsuit arises from the employment of Plaintiff Janeice Thomas (“Plaintiff) by Defendant, CheckSmart Financial, LLC (“CheckSmart”). Plaintiff seeks to represent a class of current and former CheckSmart employees on claims that CheckSrnart violated provisions of the Labor Code and Business and Professions Code.

Checksmart has determined that the proposed class consists of 1,735 individuals who signed binding arbitration agreements with Checksmart. Although Plaintiff did not sign an arbitration agreement, when plaintiff moved for class certification she included declarations of 46 putative class members. Some of them were CheckSmart employees hired after June 1, 2014 who signed an Arbitration Agreement.

Checksmart relies on Sky Sports, Inc. v Superior Court (2011) 201 Cal.App.4th 1363,

1369, in which the court of appeal held that the employer had not waived the right to seek arbitration of class members claims until after the class was certified. However, that case is not helpful to Checksmart because the Sky Sports court recognized that any motion to compel arbitration before the class was certified would be denied because the putative class members were not yet parties to the action. (Id.)

Although plaintiff has given notice that she intends to include as members of the class people who have signed arbitration agreements, since they are not yet parties to the action, the motion to compel arbitration is premature because the CCP requires that the person who signed the agreement be a party to the action. CCP 1281.2.

The Court rejects plaintiff’s argument that because this motion was “improper” the court should find that Defendant waived its right to compel the putative class members to arbitration in the future if those members become part of the class. The fact that the motion was filed, though premature, supports Checksmart’s argument that the right to arbitration was not waived.