This case was last updated from Los Angeles County Superior Courts on 08/06/2022 at 14:41:10 (UTC).

MARK GAMBLE VS ALLIED UNIVERSAL SERVICES, ET AL.

Case Summary

On 09/30/2021 MARK GAMBLE filed a Labor - Other Labor lawsuit against ALLIED UNIVERSAL SERVICES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BRUCE G. IWASAKI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6089

  • Filing Date:

    09/30/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

BRUCE G. IWASAKI

 

Party Details

Plaintiff

GAMBLE MARK

Defendants

ALLIED UNIVERSAL SERVICES

PALMDALE REGIONAL MEDICAL CENTER

SPENCER DAVID

Attorney/Law Firm Details

Plaintiff Attorney

WYATT ANDREW M

Defendant Attorney

VIER CHRISTINA

 

Court Documents

Notice of Ruling

5/5/2022: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON DEFENDANT'S MOTION TO COMPEL ARBITRATION)

5/5/2022: Minute Order - MINUTE ORDER (HEARING ON DEFENDANT'S MOTION TO COMPEL ARBITRATION)

Joinder to Motion - JOINDER TO MOTION DEFENDANT LANCASTER HOSPITAL CORPORATION DBA PALMDALE REGIONAL MEDICAL CENTERS NOTICE OF JOINDER AND JOINDER IN DEFENDANT UNIVERSAL PROTECTION SERVICE, LP DBA ALL

4/28/2022: Joinder to Motion - JOINDER TO MOTION DEFENDANT LANCASTER HOSPITAL CORPORATION DBA PALMDALE REGIONAL MEDICAL CENTERS NOTICE OF JOINDER AND JOINDER IN DEFENDANT UNIVERSAL PROTECTION SERVICE, LP DBA ALL

Reply - REPLY DEFENDANT UNIVERSAL PROTECTION SERVICE, LP'S REPLY IN SUPPORT OF ITS MOTION TO COMPEL ARBITRATION AND STAY ACTION

4/28/2022: Reply - REPLY DEFENDANT UNIVERSAL PROTECTION SERVICE, LP'S REPLY IN SUPPORT OF ITS MOTION TO COMPEL ARBITRATION AND STAY ACTION

Opposition - OPPOSITION TO DEFENDANT ALLIED UNIVERSAL SERVICESS MOTION TO COMPEL ARBITRATION

4/18/2022: Opposition - OPPOSITION TO DEFENDANT ALLIED UNIVERSAL SERVICESS MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF PEGGY GRZYWACZ IN SUPPORT OF MOTION TO COMPEL ARBITRATION

4/11/2022: Declaration - DECLARATION OF PEGGY GRZYWACZ IN SUPPORT OF MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF DAVID LEWIS IN SUPPORT OF MOTION TO COMPEL ARBITRATION

4/11/2022: Declaration - DECLARATION OF DAVID LEWIS IN SUPPORT OF MOTION TO COMPEL ARBITRATION

Memorandum of Points & Authorities

4/11/2022: Memorandum of Points & Authorities

Notice of Motion

4/11/2022: Notice of Motion

Answer

3/21/2022: Answer

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

3/18/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

Notice of Case Reassignment and Order for Plaintiff to Give Notice

2/23/2022: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Proof of Personal Service

3/17/2022: Proof of Personal Service

Proof of Personal Service

3/17/2022: Proof of Personal Service

Case Management Statement

3/17/2022: Case Management Statement

Order to Show Cause Failure to File Proof of Service

10/5/2021: Order to Show Cause Failure to File Proof of Service

Notice of Case Management Conference

10/5/2021: Notice of Case Management Conference

Summons - SUMMONS ON COMPLAINT

9/30/2021: Summons - SUMMONS ON COMPLAINT

9 More Documents Available

 

Docket Entries

  • 06/13/2022
  • Docketat 08:30 AM in Department 58; Case Management Conference - Not Held - Vacated by Court

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  • 06/13/2022
  • Docketat 08:30 AM in Department 58; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Vacated by Court

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  • 05/05/2022
  • Docketat 09:30 AM in Department 58; Hearing on Motion to Compel Arbitration - Not Held - Taken Off Calendar by Party

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  • 05/05/2022
  • Docketat 09:00 AM in Department 58, Bruce G. Iwasaki, Presiding; Hearing on Motion to Compel Arbitration - Held

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  • 05/05/2022
  • DocketMinute Order ( (Hearing on Defendant's Motion to Compel Arbitration)); Filed by Clerk

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  • 05/05/2022
  • DocketNotice of Ruling; Filed by Allied Universal Services (Defendant)

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  • 05/02/2022
  • Docketat 09:30 AM in Department 58; Hearing on Motion to Compel Arbitration - Not Held - Rescheduled by Party

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  • 04/28/2022
  • DocketJoinder to Motion (DEFENDANT LANCASTER HOSPITAL CORPORATION dba PALMDALE REGIONAL MEDICAL CENTERS NOTICE OF JOINDER AND JOINDER IN DEFENDANT UNIVERSAL PROTECTION SERVICE, LP DBA ALLIED UNIVERSAL SECURITY SERVICES MOTION TO COMPEL ARBITRATION AND STAY ACTION); Filed by Lancaster Hospital Corporation, dba Palmdale Regional Medical Center Erroneously Sued As Palmdale Regional Medical Center (Defendant)

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  • 04/28/2022
  • DocketReply (Defendant Universal Protection Service, LP's Reply in Support of Its Motion to Compel Arbitration and Stay Action); Filed by Allied Universal Services (Defendant)

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  • 04/18/2022
  • DocketOpposition (TO DEFENDANT ALLIED UNIVERSAL SERVICES?S MOTION TO COMPEL ARBITRATION); Filed by Mark Gamble (Plaintiff)

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8 More Docket Entries
  • 03/17/2022
  • DocketProof of Personal Service; Filed by Mark Gamble (Plaintiff)

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  • 03/17/2022
  • DocketProof of Personal Service; Filed by Mark Gamble (Plaintiff)

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  • 03/17/2022
  • DocketCase Management Statement; Filed by Mark Gamble (Plaintiff)

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  • 02/23/2022
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 10/05/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 10/05/2021
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 09/30/2021
  • DocketSummons (on Complaint); Filed by Mark Gamble (Plaintiff)

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  • 09/30/2021
  • DocketCivil Case Cover Sheet; Filed by Mark Gamble (Plaintiff)

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  • 09/30/2021
  • DocketComplaint; Filed by Mark Gamble (Plaintiff)

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  • 09/30/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******6089 Hearing Date: May 5, 2022 Dept: 58

Judge Bruce G. Iwasaki

Department 58


Hearing Date: May 5, 2022

Case Name: Mark Gamble v. Allied Universal Services et al.

Case No.: *******6089

Motion: Motion to Compel Arbitration

Moving Party: Defendant Universal Protection Service, LP dba Allied Universal Security Services

Responding Party: Plaintiff Mark Gamble

Tentative Ruling: The Motion to Compel Arbitration is granted.

BACKGROUND

On September 30, 2021, Plaintiff Mark Gamble (Plaintiff or Gamble) filed a complaint against Defendants Allied Universal Services (Universal Protection), Palmdale Regional Medical Center (Palmdale Regional), and David Spencer (Spencer) alleging claims for racial discrimination, harassment, failure to prevent discrimination, violation of the Unruh Act, violation of the Bane Act, violation of the Ralph Act, and racial violence. Plaintiff was a security guard and was assigned to work at Palmdale Regional.

The Complaint alleges that Defendant Spencer would often bully and humiliate Plaintiff. For example, Plaintiff claims that he was a “pawn” in Spencer’s demonstration and Spencer punched him in the chest with such force that it caused him to stumble back a couple of feet. Later that afternoon, Spencer reportedly kneed Plaintiff in the thighs and stated, “how did you like that?” Plaintiff further alleged that none of the Defendants investigated the incident.

Defendant Universal Protection filed a Motion to Compel Arbitration and Stay Action. Plaintiff opposed the motion a week later and Universal Protection filed a reply. Defendant Palmdale Regional joined in the Motion to Compel Arbitration.

The Court finds that there is a valid arbitration agreement to arbitrate the labor dispute in this case. The agreement is not procedurally or substantive unconscionable.

LEGAL STANDARD

Code of Civil Procedure section 1281.2 authorizes the court to order arbitration of a controversy if it finds the parties have agreed to arbitrate that dispute. Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Since arbitration is a favored method of dispute resolution, arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question. (Id. at p. 353; Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) However, there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. (Weeks, supra, 113 Cal.App.3d at 353.)

The party moving to compel arbitration has the initial burden to (1) affirmatively admit and allege the existence of a written arbitration agreement, and (2) prove the existence of that agreement by a preponderance of the evidence. (Rosenthal v. Great W. Fin. Sec. Corp, 14 Cal. 4th 394, 413.) Once this is met, the burden shifts to the responding party to prove that the agreement is unenforceable by a preponderance of the evidence. (Ibid.)

DISCUSSION

Agreement to Arbitrate

Preliminarily, Plaintiff argues that there is no signature on the arbitration agreement, so it is unclear that he received the document or had an opportunity to review it before being bound. In addition, he asserts that he could not have understood the “densely written legal boilerplate document without the assistance of legal counsel.” However, Plaintiff does not provide any legal authority or accompanying declaration. The “Acknowledgment of Receipt of arbitration policy and agreement” states:

I, the undersigned employee, acknowledge that I have received a copy of the Company's Arbitration Policy and Agreement (the "Agreement"). I understand that I am bound by the terms of this Agreement unless I affirmatively opt-out of the Agreement within 30 days of my receipt of the Agreement by completing and returning the Election to Opt-Out of Arbitration Policy and Agreement form provided to me along with the Agreement. By my signature below, I acknowledge that I have had an opportunity to read the Agreement, that I have had an opportunity to ask questions about the Agreement, and that I understand the Agreement.

The signature section is a checkbox, which provides Plaintiff’s name, date, and time of signature. In parenthesis, it states “checking the checkbox above is equivalent to a handwritten signature.”

In establishing the existence of an agreement to arbitrate, it is generally sufficient for defendant to simply provide a copy of the arbitration agreement. (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.) “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal. App. 5th 785, 793 (2017) (“unless there is a dispute over authenticity, it is sufficient for a party moving to compel arbitration to recite the terms of the governing provision.”). Accordingly, “a petitioner is not required to authenticate an opposing party's signature on an arbitration agreement as a preliminary matter in moving for arbitration or in the event the authenticity of the signature is not challenged.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846, original italics.)

If a party contests the authenticity of the arbitration agreement, the party seeking to enforce it must properly authenticate it. (Ruiz v. Moss Bros. Auto Group, Inc., supra, 232 Cal.App.4th at pp. 843-846.) “In ruling on the petition when factual matters are in dispute, the court must weigh credibility and the strength of competing evidence.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 971.)

Plaintiff’s assertion that he failed to read the agreement or understand the terms is insufficient. (Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590 [“the general rule [is] that one who signs an agreement cannot avoid its terms on the ground that he failed to read it.”]

As to the electronic signature, the Declaration of Peggy Grzywacz, the Senior Director for Corporate Human Resources for Defendant Universal Protection, explains that as part of the hiring process, the arbitration agreement was provided as a separate document to Plaintiff. (Grzywacz Decl. 6-8.) Ms. Grzywacz attests that Plaintiff signed the required agreement. (Id. at 9.) Given that Plaintiff was required to sign the form before he could begin employment, and Defendant’s records indicate that Plaintiff executed the forms, it follows that Plaintiff’s signature within the record was “executed or adopted” by him “with the intent to sign the electronic record.” (Civ. Code 1633.2, subd. (h) [defining “electronic signature” for purposes of the Uniform Electronic Transactions Act].) Once Defendant met its burden, the burden shifted to Plaintiff to “produc[e] evidence of, and prov[e] by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp., supra,14 Cal.4th at p. 413.) Plaintiff has not done so here.

Plaintiff fails to provide any evidence that he did not sign the agreement. He provides no declaration attesting that he did not sign the agreement or is otherwise disputing that he did not electronically check the box evidencing his signature. Instead, counsel merely asserts that the signature is not a “ ‘wet’ signature.” This assertion is insufficient, especially because Plaintiff himself did not submit any admissible evidence. (Ruiz v. Moss Bros. Auto Group, supra, 232 Cal.App.4th at p. 846. [noting burden of authentication properly shifted to defendant due to plaintiff’s declaration stating he did not recall signing the agreement and would not have done so had it been presented to him]; See also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1054 [finding that plaintiff properly challenged the authentication of his signature through an accompanying declaration and that he did not recall ever signing the contract.].)

The Court finds that Defendant has met its initial burden of establishing the existence of an agreement to arbitrate.

Third parties

Plaintiff argues that Defendants Palmdale Regional and Spencer are not signatories or agents of Allied Universal and that the arbitration agreement does not contemplate the addition of third parties.

The arbitration agreement applies to Universal Protection, “officers, directors, agents, employees, parents, and their respective successors and assigns.”

Nonsignatories sued as agents of a signatory may enforce an arbitration agreement. (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1284.) For example, in Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418, the plaintiff sued the Rams and various individuals “in their capacities as “ ‘owners, operators, managing agents, and in control [sic] of’ ” the Rams for breach of contract. (Id. at pp. 409–410, 418.) The Court of Appeal reversed the trial court’s denial of defendants’ petition to compel arbitration, holding that if “the individual defendants, though not signatories, were acting as agents for the Rams, then they are entitled to the benefit of the arbitration provisions.” (Id. at p. 418.)

This concept is evident in staffing agency situations under an equitable estoppel theory. In Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, plaintiff had an arbitration agreement with his employer, Real Time Staffing Services. He sued Real Time and a worksite employer, Pexco, for labor law violations. (Id. at pp. 784–785.) The appellate court affirmed the order compelling arbitration because even though Pexco was a nonsignatory, it could compel arbitration because “all of [plaintiff’s] claims are intimately founded in and intertwined with his employment relationship with Real Time,” with whom he agreed to arbitrate “ ‘any dispute.’ ” (Id. at pp. 787, 784.) Thus, plaintiff could not “link Pexco to Real Time to hold it liable for alleged wage and hour claims, while at the same time arguing the arbitration provision only applies to Real Time and not Pexco.” (Id. at p. 788.) As joint employers, Pexco and Real Time were agents of each other in their dealings with Garcia. (Ibid.)

Here, in relevant part, the arbitration agreement applies to breach of contract, any tort claims, “claims for discrimination and/or harassment…claims for violation of any law, statute, regulation, ordinance or common law, including, but not limited to…California’s Unruh Civil Rights Act.” The lawsuit falls within the agreement. The first, second, and third cause of action directly relates to discrimination and harassment. The fourth through sixth claims are for violations of statutory laws. All claims arise from Plaintiff’s employment with Universal Protection.

Plaintiff’s argument that co-Defendants Palmdale Regional and Spencer are not agents of Universal Protection is belied by his own Complaint. He asserts that Palmdale Regional and Allied Universal are “joint employers.” (Complaint, 8.) The Complaint also alleges that “Defendants, and each of them, were the agents and employees of each of the Defendants.” (Id. at 3.) He offers no legal authority as to why an arbitration agreement may not be enforced against a party who is sued as an agent of the signatory. (Rowe v. Exline, supra, 153 Cal.App.4th at p. 1284.) Plaintiff’s claims against nonsignatories Palmdale Regional and Spencer are “rooted in his employment relationship” with signatory Universal Protection. (Garcia v. Pexco, supra, 11 Cal.App.5th at p. 787.)

The Court finds that the arbitration agreement is applicable to Defendants Palmdale Regional and Spencer.

The arbitration agreement is enforceable and complies with Armendariz

The California Supreme Court has set forth five minimum requirements for the lawful arbitration of statutory civil rights pursuant to a mandatory employment arbitration agreement. Such an agreement is lawful if it “(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.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 102.)

These requirements are met here. (Grzywacz Decl., Ex. A, Arbitration Policy and Agreement, 6(b)-(e).) The agreement provides for a neutral arbitrator selected by the agreement of the parties, more than minimal discovery (up to three depositions, one set of requests for production with up to 35 requests, one set of interrogatories with up to 25 interrogatories) with the ability to expand the scope of discovery, written opinion, remedies available in a court, and reasonable fees (employee to pay costs to otherwise initiate a lawsuit in state court, employer pays all costs unique to arbitration.)

Plaintiff does not argue that any of these minimum requirements are not satisfied. Rather, he argues that the agreement is procedurally and substantively unconscionable because it (1) is adhesive, and (2) limits discovery.

The arbitration agreement is not unconscionable.

Procedural unconscionability

“The procedural element of the unconscionability analysis concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] The element focuses on oppression or surprise. [Citation.] ‘Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice.’ [Citation.] Surprise is defined as ‘“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.”’ [Citation.]” (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 581.)

Plaintiff has only made a slight showing of procedural unconscionability. He argues that the agreement was a contract of adhesion “because it was a mandatory condition of employment.”

Plaintiff overlooks the acknowledgment paragraph of the arbitration agreement, which allows him 30 days to opt out of the agreement. Thus, the agreement is not presented on a “take it or leave it basis” and is not necessarily a contract of adhesion.

In any event, even if the agreement can be considered a contract of adhesion, it presents a minimal degree of procedural unconscionability. A contract of adhesion is prepared by the party of superior bargaining strength and forces the subscribing party the opportunity to adhere to the contract or reject it. (Walnut Producers of California (2010) 187 Cal.App.4th 634, 645.) However, “ ‘[A]bsent unusual circumstances, use of a contract of adhesion establishes a minimal degree of procedural unconscionability notwithstanding the availability of market alternatives.’ ” (Walnut Producers of California, supra, 187 Cal.App.4th 634, 646.) Plaintiff offers no other reason as to why an adhesion contract alone establishes more than minimal procedural unconscionability.

Substantive unconscionability

Plaintiff contends that the discovery provisions of the arbitration agreement favor the Defendants. He asserts that employment disputes are factually complex and require numerous witnesses and “[s]eemingly neutral limitations on discovery in employment disputes may be nonmutual in effect.” Thus, he argues that the discovery provision in Section 6(c) of the agreement limiting him to one set of 25 interrogatories, one set of 35 document requests, and 3 depositions is insufficient because there are three parties and “so Plaintiff is severely handicapped by this limitation.”

Plaintiff further contends that the arbitration document “provides for dispositive motions which favors Defendant” and “does not provide a mechanism for a motion to compel discovery responses with monetary sanctions if Defendant stonewalls Plaintiff in producing responses and/or documents.”

“ ‘A provision is substantively unconscionable if it “involves contract terms that are so one-sided as to ‘shock the conscience,’ or that impose harsh or oppressive terms.” [Citation.] The phrases ‘harsh,’ ‘oppressive,’ and ‘shock the conscience’ are not synonymous with “unreasonable.” Basing an unconscionability determination on the reasonableness of a contract provision would inject an inappropriate level of judicial subjectivity into the analysis. “With a concept as nebulous as ‘unconscionability’ it is important that courts not be thrust in the paternalistic role of intervening to change contractual terms that the parties have agreed to merely because the court believes the terms are unreasonable. The terms must shock the conscience.” [Citations.]’ ” (Walnut Producers of California, supra, 187 Cal.App.4th at pp. 647-648.)

“Adequate discovery is indispensable for the vindication of statutory claims. (Citation omitted.) “‘[A]dequate’ discovery does not mean unfettered discovery ….” (Citation omitted.) And parties may “agree to something less than the full panoply of discovery provided in Code of Civil Procedure section 1283.05.” (Citation omitted.) However, arbitration agreements must “ensure minimum standards of fairness” so employees can vindicate their public rights. (Citation omitted).” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 715-16 (bold emphasis added).)

The arbitration agreement’s section on discovery states:

The Parties agree that reasonable discovery is essential to the just resolution of any claims which may be covered by this Arbitration Policy and Agreement. Accordingly, nothing in this Arbitration Policy and Agreement or in the AAA Rules shall be interpreted to limit the Parties' rights to reasonable discovery. Rather, reasonable discovery shall be allowed that is sufficient to ensure the adequate arbitration of any claims covered by this Arbitration Policy and Agreement. Generally, the Parties agree that reasonable discovery means up to three depositions per side, one set of requests for production of documents with up to 35 requests, and one set of interrogatories with up to 25 interrogatories. In the event that the Parties believe this scope of discovery is inadequate, the Parties shall meet and confer and try to reach agreement on the scope of discovery and the arbitrator shall have discretion to resolve any disagreement concerning the scope of discovery and to allow discovery determined by the arbitrator to be reasonably necessary to the just resolution of the dispute considering the streamlined nature and purpose of arbitration.

The second sentence indicates that nothing in the agreement shall be interpreted to limit the parties’ rights to reasonable discovery. In addition, the clause requires that the Parties “meet and confer” to resolve issues on the scope of discovery and authorizes the arbitrator to “allow discovery…reasonably necessary to the just resolution of the dispute.” (Grzywacz Decl., Ex. A, Arbitration Policy and Agreement, 6(c), italics added.) This standard appears to be relatively low. (cf. Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 717 [finding that an arbitration clause authorizing the arbitrator to resolve a discovery dispute only “ ‘if a fair hearing is impossible without additional discovery’ ” to be insufficient.]; cf. Ramirez v. Charter Communications (2022) 75 Cal.App.5th 365, 386 [finding that a provision allowing the arbitrator to merely resolve any disagreements regarding the exchange of information or depositions is not tantamount to being able to order additional depositions, which were necessary for plaintiff to present her case.].)

Plaintiff does not provide any specific number of depositions, witnesses, or requests that he intends to seek, but simply asserts that limitation would handicap him because of the numerous Defendants. However, this limitation amount is mutual. “While the amount of discovery permitted under the arbitration agreement appears inconsistent with the general discovery practice in employment litigation, the limits are applicable to both employer and employee so at least they have the virtue of mutuality. Furthermore, the 30 discovery requests limit may work to the employee’s advantage by preventing the employer from burying the employee under a mountain of discovery. We also note the discovery limits can be extended by the arbitrator for good cause.” (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 183 [although it found arbitration agreement unconscionable, court did not conclude it afforded inadequate discovery].) As in Mercuro, Plaintiff is allowed to expand the discovery under the arbitration agreement. Thus, the Court does not find that the discovery limitations are substantively unconscionable.

Plaintiff is also mistaken that he cannot bring dispositive motions. The arbitration agreement again provides mutuality: “The Parties further agree that they shall have the right to bring a dispositive motion in arbitration (i.e., Motion to Dismiss, Motion for Judgment on the Pleadings, Motion for Summary Judgment, etc.)” (Grzywacz Decl., Ex. A, Arbitration Policy and Agreement, 6(b), italics added.)

Furthermore, as to enforcement of discovery compliance, the Court notes that the arbitration agreement incorporates in the rules from the American Arbitration Association. (Grzywacz Decl., Ex. A, Arbitration Policy and Agreement, 6(a).) Those discovery rules expressly authorize the arbitrator to “order ‘such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.’ ” (Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1476.) In addition, there is nothing on the face of arbitration agreement prohibiting a party from seeking to compel discovery responses or sanctions.

Accordingly, the Court finds that the arbitration agreement is not substantively unconscionable.

There is no violation of Labor Code section 432.6

Plaintiff contends that the arbitration agreement violates Labor Code section 432.6, which states: “A person shall not, as a condition of employment, continued employment, or the

receipt of any employment-related benefit, require any applicant for employment or any

employee to waive any right, forum, or procedure for a violation of any provision of

the California Fair Employment and Housing Act. . . .”

Plaintiff fails to discuss the rest of the statute. Labor Code section 432.6, subdivision (h) states that the entirety of that section only applies to contracts for employment entered into, modified, or extended on or after January 1, 2020. Plaintiff’s employment contract, as well as the arbitration agreement, was signed on August 25, 2017.

In addition, Labor Code section 432.6 does not, on its face, permit the Court to invalidate any private arbitration agreement that is otherwise enforceable under the FAA. (Lab. Code 432.6, subd. (f) ("Nothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act").

Therefore, the motion to compel arbitration is GRANTED.



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