This case was last updated from Los Angeles County Superior Courts on 07/10/2021 at 02:54:21 (UTC).

ADEDEJI FAGBOLA VS CPES CALIFORNIA, INC

Case Summary

On 06/03/2020 ADEDEJI FAGBOLA filed a Labor - Wrongful Termination lawsuit against CPES CALIFORNIA, INC. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are THERESA M. TRABER and BERNIE C. LAFORTEZA. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0617

  • Filing Date:

    06/03/2020

  • Case Status:

    Other

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THERESA M. TRABER

BERNIE C. LAFORTEZA

 

Party Details

Plaintiff

FAGBOLA ADEDEJI

Defendant

CPES CALIFORNIA INC

Attorney/Law Firm Details

Plaintiff Attorney

ORONSAYE CHRISTIAN IGHEGHA

Defendant Attorney

CATO CHRISTOPHER B.

 

Court Documents

Request for Dismissal

7/6/2021: Request for Dismissal

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

6/28/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))

Notice of Settlement

5/17/2021: Notice of Settlement

Order to Show Cause re: Dismissal (Settlement)

5/18/2021: Order to Show Cause re: Dismissal (Settlement)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION TO COMPEL ARBIT...)

5/6/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON MOTION TO COMPEL ARBIT...)

Notice of Ruling

5/6/2021: Notice of Ruling

Proof of Service by Mail

5/6/2021: Proof of Service by Mail

Proof of Service by Mail

5/6/2021: Proof of Service by Mail

Proof of Service by Mail

4/22/2021: Proof of Service by Mail

Case Management Statement

4/22/2021: Case Management Statement

Notice of Change of Address or Other Contact Information

4/26/2021: Notice of Change of Address or Other Contact Information

Case Management Statement

4/26/2021: Case Management Statement

Proof of Service by Mail

4/29/2021: Proof of Service by Mail

Reply - REPLY REPLY BRIEF IN SUPPORT OF DEFENDANT CPES CALIFORNIA, INC.'S PETITION TO COMPEL ARBITRATION

4/29/2021: Reply - REPLY REPLY BRIEF IN SUPPORT OF DEFENDANT CPES CALIFORNIA, INC.'S PETITION TO COMPEL ARBITRATION

Opposition - OPPOSITION OPPOSITION TO MOTION TO COMPEL ARBITRATION

4/21/2021: Opposition - OPPOSITION OPPOSITION TO MOTION TO COMPEL ARBITRATION

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: BANKRUPTCY)

4/19/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: BANKRUPTCY)

Notice - NOTICE AMENDED NOTICE OF TERMINATION OR MODIFICATION OF STAY

4/8/2021: Notice - NOTICE AMENDED NOTICE OF TERMINATION OR MODIFICATION OF STAY

Notice - NOTICE NOTICE OF TERMINATION OR MODIFICATION OF STAY

3/16/2021: Notice - NOTICE NOTICE OF TERMINATION OR MODIFICATION OF STAY

26 More Documents Available

 

Docket Entries

  • 07/06/2021
  • DocketRequest for Dismissal; Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less
  • 06/28/2021
  • Docketat 08:30 AM in Department U, Bernie C. LaForteza, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held - Continued

    Read MoreRead Less
  • 06/28/2021
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 05/18/2021
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

    Read MoreRead Less
  • 05/17/2021
  • DocketNotice of Settlement; Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less
  • 05/06/2021
  • Docketat 08:30 AM in Department U, Bernie C. LaForteza, Presiding; Case Management Conference - Held

    Read MoreRead Less
  • 05/06/2021
  • Docketat 08:30 AM in Department U, Bernie C. LaForteza, Presiding; Hearing on Motion to Compel Arbitration - Held - Continued

    Read MoreRead Less
  • 05/06/2021
  • Docketat 08:30 AM in Department U, Bernie C. LaForteza, Presiding; Non-Appearance Case Review (Bankruptcy) - Held

    Read MoreRead Less
  • 05/06/2021
  • Docketat 08:30 AM in Department U, Bernie C. LaForteza, Presiding; Hearing on Motion to Compel Arbitration - Held

    Read MoreRead Less
  • 05/06/2021
  • DocketProof of Service by Mail; Filed by CPES CALIFORNIA, INC (Defendant)

    Read MoreRead Less
28 More Docket Entries
  • 08/20/2020
  • DocketProof of Service by Mail; Filed by CPES CALIFORNIA, INC (Defendant)

    Read MoreRead Less
  • 08/19/2020
  • DocketProof of Service by Mail; Filed by CPES CALIFORNIA, INC (Defendant)

    Read MoreRead Less
  • 08/19/2020
  • DocketAnswer; Filed by CPES CALIFORNIA, INC (Defendant)

    Read MoreRead Less
  • 07/13/2020
  • DocketProof of Personal Service; Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less
  • 06/08/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 06/04/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 06/03/2020
  • DocketSummons (on Complaint); Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less
  • 06/03/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 06/03/2020
  • DocketCivil Case Cover Sheet; Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less
  • 06/03/2020
  • DocketComplaint; Filed by ADEDEJI FAGBOLA (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: *******0617    Hearing Date: May 6, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

Adedeji Fagbola.

Plaintiff,

vs.

CPES California, Inc.,

Defendant.

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[TENTATIVE] ORDER RE:  Petition to Compel Arbitration

Dept. U

8:30 a.m.

May 6, 2021

I. BACKGROUND

This matter arises from Plaintiff Adedeji Fagbola’s (“Plaintiff”) employment with Defendant CPES California, Inc. (“Defendant”).

On June 3, 2020, Plaintiff filed a Complaint contains causes of action for (1) wrongful termination (breach of contract), (2) wrongful termination (public policy violation), (3) harassment in violation of FEHA, (4) failure to prevent discrimination and harassment (FEHA), (5) breach of implied covenant of good faith and fair dealing, (6) IIED, (7) race discrimination. (8) retaliation, (9) whistleblower retaliation (the “Causes of Action”) against Defendant.

II. LEGAL STANDARD

Under California law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes.  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 (Concepcion).)  “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.”  (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 (Acquire II), citing Code of Civ. Proc., ; 1281.2, subds. (a)-(c).)  Similarly, the Federal Arbitration Act (“FAA”) reflects a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.  (Concepcionsupra, 563 U.S. at p. 339.)  In line with these principles, courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.  (Id.)  “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’”  (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.) 

Accordingly, whether an agreement is governed by the California Arbitration Act (“CAA”) or the FAA, courts resolve doubts regarding the scope of arbitrable issues in favor of arbitration.  (Moncharshsupra, at 3 Cal.4th at p. 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation]”].)  The petitioner bears the burden of proving the existence of a valid arbitration agreement, and the opposing party bears the burden of proving any fact necessary to its defense.  (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579.) 

III. DISCUSSION

a. Existence of an Enforceable Arbitration Agreement

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)   

“Arbitration is a product of contract.  Parties are not required to arbitrate their disagreements unless they have agreed to do so.  [Citation.]  A contract to arbitrate will not be inferred absent a ‘clear agreement.’  [Citation.]  When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation.  [Citation.]  In California, a ‘clear agreement’ to arbitrate may be either express or implied in fact.  [Citation.]”  (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-93.)  “[T]he court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity.  (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215.)

Defendant contends that there is a valid arbitration agreement signed by Plaintiff.  The arbitration agreement (the “Agreement”) provides in relevant part:

The Agreement is dated January 22, 2018, and bears the signature of “Adedeji Fagbola.”  (See Id.)  Plaintiff does not oppose that the Agreement is valid.  In addition, the Agreement expressly provides that “that any controversy, claim or dispute arising out of or relating to Applicant's application or candidacy for employment, or Employee’s employment or and/or cessation of employment, and which is otherwise actionable at law, will be resolved exclusively by final and binding arbitration before a neutral Arbitrator under the laws of the State of California.”  (See Id.)  The Agreement expressly covers all of the Causes of Action, which arise from Plaintiff’s employment with Defendant.

Thus, Defendant met its initial burden to demonstrate the existence of a valid arbitration agreement that encompasses Plaintiff’s claims.  The Court now turns to Plaintiff’s arguments regarding defenses to enforcement for arbitration. 

b. Unconscionability

Plaintiff contends that the Agreement is unenforceable because it is both procedurally and substantively unconscionable. 

The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”  Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.  It consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.”  Id.  Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree.  Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114 (abrogated in-part on other grounds by Concepcion, 563 U.S. 333).   

“Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.  [Citations.]  In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”  Id.  “The party resisting arbitration bears the burden of proving unconscionability.”  Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev. (US) (2012) LLC, 55 Cal.4th 223, 247. 

Procedural Unconscionability

Plaintiff contends that the Agreement is procedurally unconscionable because it is a contract of adhesion and Defendant failed to provide Plaintiff with the rules for arbitration.

Procedural unconscionability “pertains to the making of the agreement.”  (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.)  Procedural unconscionability “focuses on two factors: ‘oppression’ and ‘surprise.’ ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’ ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.”  (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484.)

A contract of adhesion typically denotes a standardized contract imposed and drafted by the party of superior bargaining strength which relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz, supra, 24 Cal.4th at 113.)  The adhesive nature of a contract is one factor that the courts may consider in determining the degree of procedural unconscionability.  (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 fn.4.)

The Court accepts that the Agreement is procedurally unconscionable to a moderate degree because it is adhesive, as Defendant, the employer and party of superior bargaining strength, drafted the Agreement.  (Fagbola Decl., ¶¶ 5-14.)  In addition, Plaintiff was told he had to sign the agreement in order to accept the position.  (See Id.)

The Court rejects Plaintiff’s argument that the arbitration agreement is procedurally unconscionable because it failed to attach the governing arbitration rules.  Recent case law has established that the failure to attach applicable arbitration rules does not increase the procedural unconscionability of an arbitration agreement unless the unconscionability claim concerns some element of those rules.  (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 249 (citing Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246).)  Plaintiff’s unconscionability claim does not take issue with any particular arbitration rule.

Thus, the Agreement is moderately procedurally unconscionable.

Substantive Unconscionability

Plaintiff contends that the Agreement is substantively unconscionable because Defendant requires its employees, the weaker parties, to arbitrate common claims while choosing to litigate its own claims in Court.

An arbitration agreement in the employment context will not be enforced as to wrongful termination, FEHA claims, and other claims tied to a fundamental public policy unless it meets the procedural safeguards of Armendariz.  (See Armendariz.supra, 24 Cal.4th at 91.)  The Armendariz requirements are that the arbitration agreement: “(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.”  (Armendarizsupra, 24 Cal.4th at 102.) 

The California Supreme Court has recognized that “[w]hen an arbitration provision is ambiguous, we will interpret that provision, if reasonable, in a manner that renders it lawful, both because of our public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution, and because of the general principle that we interpret a contractual provision in a manner that renders it enforceable rather than void.”  (Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 682.)

As a preliminary matter, while Plaintiff contends that Defendant requires only its employees to arbitrate its claim, while choosing to litigate its own claims in Court is unsupported.  Here, as outlined above, the Agreement applies to “any controversy, claim or dispute arising out of or relating to Applicant's application or candidacy for employment, or Employee’s employment or and/or cessation of employment . . . This is a mutual agreement and is binding for claims of either party.”  To the extent that any dispute arises from Plaintiff’s application, candidacy, employment, or cessation of employment, both Plaintiff and Defendant can compel the other party to arbitration.

In addition, the Agreement provides that all claims will be resolved by a binding arbitration “before a neutral arbitrator under the laws of California,” with no restrictions to “discovery rights,” requires the arbitrators award to be in writing, and provides for no limits on remedies.  (See Wiseman Decl., Exh. A.)  While the Agreement does not provide who is to bear the costs for arbitration, viewing the Agreement in favor of arbitration, the Agreement states that any controversy, claim, or dispute arising out of the Agreement will be subject to the “laws of California.”  As such, pursuant to Armendariz, Plaintiff cannot be required to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.  As such, the Agreement satisfies the Armendariz requirements.

Thus, the Agreement is not substantively unconscionable.   

Balance of factors

While the Agreement is moderately procedurally unconscionable, it is not substantively unconscionable.  Plaintiffs thus fails to meet his burden to prove unconscionability.

IV. STAY OF PROCEEDINGS

Defendant requests that the Court stay the action pending the outcome of the arbitration.  Under CCP section 1281.4, when the Court has ordered the arbitration of a controversy which is an issue involved in an action or proceeding pending before the Court, it shall, upon motion of a party stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate.  Any party to a judicial proceeding “is entitled to a stay of those proceedings whenever (1) the arbitration of a controversy has been ordered, and (2) that controversy is also an issue involved in the pending judicial action.”  (Marcus v. Superior Court (1977) 75 Cal. App. 3d 204, 209.)  “The purpose of the statutory stay is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved.”  (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1374.)  “In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective.” (Id. at 1375.) 

Since the Court should order arbitration of this matter, the Court will stay the action until the arbitration is completed.

V. CONCLUSION

Defendant’s motion to compel arbitration is GRANTED.  The court STAYS the matter pending the completion of arbitration.

Defendant to give notice.SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

Adedeji Fagbola.

Plaintiff,

vs.

CPES California, Inc.,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

) )

CASE NO: *******0617

[TENTATIVE] ORDER RE: Petition to Compel Arbitration

Dept. U

8:30 a.m.

May 6, 2021

I. BACKGROUND

This matter arises from Plaintiff Adedeji Fagbola’s (“Plaintiff”) employment with Defendant CPES California, Inc. (“Defendant”).

On June 3, 2020, Plaintiff filed a Complaint contains causes of action for (1) wrongful termination (breach of contract), (2) wrongful termination (public policy violation), (3) harassment in violation of FEHA, (4) failure to prevent discrimination and harassment (FEHA), (5) breach of implied covenant of good faith and fair dealing, (6) IIED, (7) race discrimination. (8) retaliation, (9) whistleblower retaliation (the “Causes of Action”) against Defendant.

II. LEGAL STANDARD

Under California law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes.  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 (Concepcion).)  “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.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 (Acquire II), citing Code of Civ. Proc., ; 1281.2, subds. (a)-(c).)  Similarly, the Federal Arbitration Act (“FAA”) reflects a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract. (Concepcionsupra, 563 U.S. at p. 339.)  In line with these principles, courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.  (Id.)  “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’”  (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.) 

Accordingly, whether an agreement is governed by the California Arbitration Act (“CAA”) or the FAA, courts resolve doubts regarding the scope of arbitrable issues in favor of arbitration.  (Moncharshsupra, at 3 Cal.4th at p. 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation]”].)  The petitioner bears the burden of proving the existence of a valid arbitration agreement, and the opposing party bears the burden of proving any fact necessary to its defense.  (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579.) 

III. DISCUSSION

a. Existence of an Enforceable Arbitration Agreement

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)   

“Arbitration is a product of contract.  Parties are not required to arbitrate their disagreements unless they have agreed to do so.  [Citation.]  A contract to arbitrate will not be inferred absent a ‘clear agreement.’  [Citation.]  When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation.  [Citation.]  In California, a ‘clear agreement’ to arbitrate may be either express or implied in fact.  [Citation.]”  (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-93.) “[T]he court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity. (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215.)

Defendant contends that there is a valid arbitration agreement signed by Plaintiff. The arbitration agreement (the “Agreement”) provides in relevant part:

“It is agreed that any controversy, claim or dispute arising out of or relating to Applicant's application or candidacy for employment, or Employee’s employment or and/or cessation of employment, and which is otherwise actionable at law, will be resolved exclusively by final and binding arbitration before a neutral Arbitrator under the laws of the State of California. . . . This agreement is negotiable and Applicant/Employee is free to seek advice of an attorney before signing. This is a mutual agreement and is binding for claims of either party. For example, such claims include claims under Federal, State, and Local statutory or common law, including, but not limited to, wage and overtime claims under the California Labor Code or federal Fair Labor Standards Act, claims under the California Fair Employment and Housing Act (Gov. Code ; 12940, et seq.), the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, the American with Disabilities Act, the law of contract and the law of tort.” (See Wiseman Decl., Exh. A.)

The Agreement is dated January 22, 2018, and bears the signature of “Adedeji Fagbola.” (See Id.) Plaintiff does not oppose that the Agreement is valid. In addition, the Agreement expressly provides that “that any controversy, claim or dispute arising out of or relating to Applicant's application or candidacy for employment, or Employee’s employment or and/or cessation of employment, and which is otherwise actionable at law, will be resolved exclusively by final and binding arbitration before a neutral Arbitrator under the laws of the State of California.” (See Id.) The Agreement expressly covers all of the Causes of Action, which arise from Plaintiff’s employment with Defendant.

Thus, Defendant met its initial burden to demonstrate the existence of a valid arbitration agreement that encompasses Plaintiff’s claims. The Court now turns to Plaintiff’s arguments regarding defenses to enforcement for arbitration.

b. Unconscionability

Plaintiff contends that the Agreement is unenforceable because it is both procedurally and substantively unconscionable.

The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”  Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.  It consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.”  Id.  Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree.  Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114 (abrogated in-part on other grounds by Concepcion, 563 U.S. 333).   

“Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.  [Citations.]  In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”  Id.  “The party resisting arbitration bears the burden of proving unconscionability.”  Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev. (US) (2012) LLC, 55 Cal.4th 223, 247. 

Procedural Unconscionability

Plaintiff contends that the Agreement is procedurally unconscionable because it is a contract of adhesion and Defendant failed to provide Plaintiff with the rules for arbitration.

Procedural unconscionability “pertains to the making of the agreement.” (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Procedural unconscionability “focuses on two factors: ‘oppression’ and ‘surprise.’ ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’ ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.” (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484.)

A contract of adhesion typically denotes a standardized contract imposed and drafted by the party of superior bargaining strength which relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz, supra, 24 Cal.4th at 113.) The adhesive nature of a contract is one factor that the courts may consider in determining the degree of procedural unconscionability. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 fn.4.)

The Court accepts that the Agreement is procedurally unconscionable to a moderate degree because it is adhesive, as Defendant, the employer and party of superior bargaining strength, drafted the Agreement. (Fagbola Decl., ¶¶ 5-14.) In addition, Plaintiff was told he had to sign the agreement in order to accept the position. (See Id.)

The Court rejects Plaintiff’s argument that the arbitration agreement is procedurally unconscionable because it failed to attach the governing arbitration rules. Recent case law has established that the failure to attach applicable arbitration rules does not increase the procedural unconscionability of an arbitration agreement unless the unconscionability claim concerns some element of those rules. (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 249 (citing Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246).) Plaintiff’s unconscionability claim does not take issue with any particular arbitration rule.

Thus, the Agreement is moderately procedurally unconscionable.

Substantive Unconscionability

Plaintiff contends that the Agreement is substantively unconscionable because Defendant requires its employees, the weaker parties, to arbitrate common claims while choosing to litigate its own claims in Court.

An arbitration agreement in the employment context will not be enforced as to wrongful termination, FEHA claims, and other claims tied to a fundamental public policy unless it meets the procedural safeguards of Armendariz.  (See Armendariz.supra, 24 Cal.4th at 91.) The Armendariz requirements are that the arbitration agreement: “(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.”  (Armendarizsupra, 24 Cal.4th at 102.) 

The California Supreme Court has recognized that “[w]hen an arbitration provision is ambiguous, we will interpret that provision, if reasonable, in a manner that renders it lawful, both because of our public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution, and because of the general principle that we interpret a contractual provision in a manner that renders it enforceable rather than void.”  (Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 682.)

As a preliminary matter, while Plaintiff contends that Defendant requires only its employees to arbitrate its claim, while choosing to litigate its own claims in Court is unsupported. Here, as outlined above, the Agreement applies to “any controversy, claim or dispute arising out of or relating to Applicant's application or candidacy for employment, or Employee’s employment or and/or cessation of employment . . . This is a mutual agreement and is binding for claims of either party.” To the extent that any dispute arises from Plaintiff’s application, candidacy, employment, or cessation of employment, both Plaintiff and Defendant can compel the other party to arbitration.

In addition, the Agreement provides that all claims will be resolved by a binding arbitration “before a neutral arbitrator under the laws of California,” with no restrictions to “discovery rights,” requires the arbitrators award to be in writing, and provides for no limits on remedies. (See Wiseman Decl., Exh. A.) While the Agreement does not provide who is to bear the costs for arbitration, viewing the Agreement in favor of arbitration, the Agreement states that any controversy, claim, or dispute arising out of the Agreement will be subject to the “laws of California.” As such, pursuant to Armendariz, Plaintiff cannot be required to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. As such, the Agreement satisfies the Armendariz requirements.

Thus, the Agreement is not substantively unconscionable.

Balance of factors

While the Agreement is moderately procedurally unconscionable, it is not substantively unconscionable. Plaintiffs thus fails to meet his burden to prove unconscionability.

IV. STAY OF PROCEEDINGS

Defendant requests that the Court stay the action pending the outcome of the arbitration. Under CCP section 1281.4, when the Court has ordered the arbitration of a controversy which is an issue involved in an action or proceeding pending before the Court, it shall, upon motion of a party stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate. Any party to a judicial proceeding “is entitled to a stay of those proceedings whenever (1) the arbitration of a controversy has been ordered, and (2) that controversy is also an issue involved in the pending judicial action.” (Marcus v. Superior Court (1977) 75 Cal. App. 3d 204, 209.) “The purpose of the statutory stay is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved.” (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1374.) “In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective.” (Id. at 1375.)

Since the Court should order arbitration of this matter, the Court will stay the action until the arbitration is completed.

V. CONCLUSION

Defendant’s motion to compel arbitration is GRANTED. The court STAYS the matter pending the completion of arbitration.

Defendant to give notice.



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