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This case was last updated from Los Angeles County Superior Courts on 07/15/2021 at 01:46:02 (UTC).

PARIS CARTER VS ADVENTIST HEALTH SYSTEM/WEST, A CALIFORNIA DOMESTIC NONPROFIT CORPORATION, ET AL.

Case Summary

On 07/09/2020 PARIS CARTER filed a Labor - Wrongful Termination lawsuit against ADVENTIST HEALTH SYSTEM/WEST, A CALIFORNIA DOMESTIC NONPROFIT CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5774

  • Filing Date:

    07/09/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiff

CARTER PARIS

Defendants

ADVENTIST HEALTH SYSTEM/WEST A CALIFORNIA DOMESTIC NONPROFIT CORPORATION

GE HEALTHCARE INC. A DELAWARE CORPORATION

Attorney/Law Firm Details

Plaintiff Attorneys

ELIHU KAVEH SAM

FRIEDMAN DANIEL JEFFREY

PANOSIAN SYLVIA V.

Defendant Attorneys

ZEE CANDICE TERRY

ISKANDER GREGORY G.

SCHULZ-AMOS AUSTIN MITCHELL

FELDMAN RENEE CHERYL

 

Court Documents

Notice - NOTICE OF ENTRY OF ORDER

4/12/2021: Notice - NOTICE OF ENTRY OF ORDER

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...) OF 04/05/2021

4/5/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITHOUT MOT...) OF 04/05/2021

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

3/2/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; CASE MANAGEME...)

Objection - OBJECTION PLAINTIFFS OBJECTIONS TO PURPORTED SUPPLEMENTAL EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANTS MOTION TO COMPEL ARBITRATION

3/18/2021: Objection - OBJECTION PLAINTIFFS OBJECTIONS TO PURPORTED SUPPLEMENTAL EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANTS MOTION TO COMPEL ARBITRATION

Reply - REPLY DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS REPLY IN SUPPORT OF ITS PETITION TO COMPEL ARBITRATION AND ITS MOTION TO STAY THE ACTION

2/23/2021: Reply - REPLY DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS REPLY IN SUPPORT OF ITS PETITION TO COMPEL ARBITRATION AND ITS MOTION TO STAY THE ACTION

Proof of Service (not Summons and Complaint)

2/23/2021: Proof of Service (not Summons and Complaint)

Objection - OBJECTION [PLAINTIFFS] TO PURPORTED EVIDENCE IN SUPPORT OF DEFENDANTS MOTION TO COMPEL ARBITRATION

2/17/2021: Objection - OBJECTION [PLAINTIFFS] TO PURPORTED EVIDENCE IN SUPPORT OF DEFENDANTS MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF PARIS CARTER IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION

2/17/2021: Declaration - DECLARATION OF PARIS CARTER IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO COMPEL ARBITRATION

Declaration - DECLARATION OF SYLVIA V. PANOSIAN IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION

2/17/2021: Declaration - DECLARATION OF SYLVIA V. PANOSIAN IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION

Proof of Service (not Summons and Complaint)

2/17/2021: Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS PETITION TO COMPEL ARBITRATION A

11/20/2020: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS PETITION TO COMPEL ARBITRATION A

Proof of Service (not Summons and Complaint)

11/20/2020: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION DECLARATION OF CANDICE T. ZEE IN SUPPORT OF DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS PETITION TO COMPEL ARBITRATION AND ITS MOTION TO STAY PROCEEDINGS

11/20/2020: Declaration - DECLARATION DECLARATION OF CANDICE T. ZEE IN SUPPORT OF DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS PETITION TO COMPEL ARBITRATION AND ITS MOTION TO STAY PROCEEDINGS

Declaration - DECLARATION DECLARATION OF VICTORIA DEL CASTILLO IN SUPPORT OF DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

11/20/2020: Declaration - DECLARATION DECLARATION OF VICTORIA DEL CASTILLO IN SUPPORT OF DEFENDANT ADVENTIST HEALTH SYSTEM/WESTS PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

Declaration - DECLARATION OF RENEE C. FELDMAN IN SUPPORT OF DEFENDANT GES DEMURRER

11/10/2020: Declaration - DECLARATION OF RENEE C. FELDMAN IN SUPPORT OF DEFENDANT GES DEMURRER

Notice of Case Management Conference

7/15/2020: Notice of Case Management Conference

Summons - SUMMONS ON COMPLAINT

7/9/2020: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

7/9/2020: Civil Case Cover Sheet

35 More Documents Available

 

Docket Entries

  • 12/12/2022
  • Hearing12/12/2022 at 09:15 AM in Department 36 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 04/12/2021
  • DocketNotice (of Entry of Order); Filed by Adventist Health System/West, a California domestic nonprofit corporation (Defendant)

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  • 04/05/2021
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Case Management Conference - Held

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  • 04/05/2021
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Hearing on Motion to Compel Arbitration - Held

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  • 04/05/2021
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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  • 04/05/2021
  • DocketMinute Order ( (Case Management Conference; Hearing on Demurrer - without Mot...)); Filed by Clerk

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  • 04/05/2021
  • DocketOrder (granting mtn to compel arbitration); Filed by Clerk

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  • 04/05/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (as to Suzanne Onuki, #13734)

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  • 04/05/2021
  • DocketCertificate of Mailing for ((Case Management Conference; Hearing on Demurrer - without Mot...) of 04/05/2021); Filed by Clerk

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  • 03/26/2021
  • DocketResponse (to Plaintiff's Objections to Purported Supplemental Evidence Submitted in Support of Defendant's Motion to Compel Arbitration); Filed by Adventist Health System/West, a California domestic nonprofit corporation (Defendant)

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37 More Docket Entries
  • 10/26/2020
  • Docketat 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Case Management Conference - Not Held - Continued - Stipulation

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  • 09/22/2020
  • DocketStipulation and Order (Continuing Responsive Pleading Deadline); Filed by GE Healthcare Inc., a Delaware corporation (Defendant)

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  • 08/25/2020
  • DocketDeclaration (of Demurring or Moving Party); Filed by GE Healthcare Inc., a Delaware corporation (Defendant)

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  • 08/25/2020
  • DocketProof of Service (not Summons and Complaint); Filed by GE Healthcare Inc., a Delaware corporation (Defendant)

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  • 08/24/2020
  • DocketAnswer; Filed by Adventist Health System/West, a California domestic nonprofit corporation (Defendant)

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  • 07/15/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/09/2020
  • DocketComplaint; Filed by Paris Carter (Plaintiff)

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  • 07/09/2020
  • DocketSummons (on Complaint); Filed by Paris Carter (Plaintiff)

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  • 07/09/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 07/09/2020
  • DocketCivil Case Cover Sheet; Filed by Paris Carter (Plaintiff)

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Tentative Rulings

Case Number: 20STCV25774    Hearing Date: April 5, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

PARIS CARTER, an individual,

Plaintiff,

v.

ADVENTIST HEALTH SYSTEM/WEST, a California domestic nonprofit corporation; GE HEALTHCARE INC., a Delaware corporation; and DOES 1 through 20, inclusive,

Defendant.

Case No.: 20STCV25774

Hearing Date: 4/5/2021

[TENTATIVE] RULING RE: Motion to Compel Arbitration; Demurrer

The Motion to Compel Arbitration is granted.

Proceedings are ordered stayed pending the outcome of arbitration.

The court does not reach the merits of Defendant GE Healthcare, Inc.’s demurrer.

I. Motion to Compel Arbitration

Plaintiff’s Objections to Defendant’s Evidence

Plaintiff’s objections to the Declaration of Victoria Del Castillo submitted with the Motion, as well as the Declaration of Victoria Del Castillo submitted with the Reply, on grounds of foundation, authentication, personal knowledge, hearsay, and relevance are each OVERRULED. Adventist’s declarant has demonstrated personal knowledge and competency for her testimony. (Del Castillo Decl. ¶¶ 1, 4, 5; Reply, Del Castillo Decl. ¶ 1, 2.) The testimony is relevant to the issues here to be resolved.

With respect to authenticity, the court notes the applicability of Ruiz v. Moss Bros. Auto Group, Inc. discussing analogous circumstances in which the party opposing arbitration asserted he did not recall signing the arbitration agreement:

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. [Citations.] Though Ruiz did not deny that the electronic signature on the 2011 agreement was his, he claimed he did not recall signing the 2011 agreement and would not have signed it had it been presented to him. In the face of Ruiz's failure to recall signing the 2011 agreement, Moss Bros. had the burden of proving by a preponderance of the evidence that the electronic signature was authentic (Evid. Code, § 1401) . . . .

((2014) 232 Cal.App.4th 836, 846.) On reply, Adventist has provided supplemental evidence in support that the Plaintiff’s signatures are authentic by showing similar signatures on several documents in Plaintiff’s personnel file. (Reply, Del Castillo Decl. ¶¶ 4-6, Exhs. A-C.) Plaintiff concedes that the signatures bear resemblance to his signature. (Carter Decl. ¶ 3.) The foregoing is sufficient to demonstrate the genuineness of the signature. (Evid. Code §§ 1415, 1416(b), (d).)

The court permitted Plaintiff to file a Sur-Reply with respect to the evidence included with Adventist’s reply. In the sur-reply, Plaintiff alleges the instant case is analogous to Flores v. Nature’s Best Distribution, LLC (2016) 7 Cal.App.5th 1 (Flores). Plaintiff alleges the Court in Flores validated the trial court’s ruling that a declarant was not competent to attest to company policies prior to the declarant’s employment. However, in Flores, the Court of Appeal declined to address this argument on authentication, and ruled on other grounds. (Flores, 7 Cal.App.5th at 9 (“We do not need to address whether the Agreement was properly authenticated because, even assuming the Agreement indeed bears plaintiff's signature, it fails to reflect plaintiff's agreement to submit her claims against defendants in the instant case . . . .”) The case thus does not provide support as to Plaintiff’s argument against authentication by Adventist’s declarant in these circumstances.

With respect to hearsay allegations, Adventist has offered supplemental evidence that the business records were made and maintained in the normal course and scope of Defendant’s business. (Reply, Del Castillo Decl. ¶¶ 2-4.)

Legal Authority

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.” (CCP § 1281.)

When presented with a petition to compel arbitration, the trial court's first task is to determine whether the agreement exists, and, if any defense to enforcement is raised, whether it is enforceable. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) The petitioner bears the burden of proving its existence by a preponderance of the evidence. (Id.)

If the party seeking arbitration bears its burden, the burden shifts to the opposing party to show that the subject agreement is unenforceable by a preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) The opponent to arbitration bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (Espejo, 246 Cal.App.4th at 1057.)

The court “sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 972.)

A court is not mandated to compel arbitration if it determines that: “A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (CCP § 1281.2(c).) A third party is one who is not bound by the arbitration agreement. (Bush v. Horizon West (2012) 205 Cal.App.4th 924, 928, as modified (Apr. 30, 2012).) In that case, a court “(1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” (CCP § 1281.2(d).)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677, 686.)

 

Discussion

Defendant Adventist Health System/West (“Adventist”) moves to compel arbitration of this action pursuant to the Federal Arbitration Act and California Code of Civil Procedure, sections 1280, et seq. Adventist’s grounds are that Plaintiff executed an Acknowledgement Agreement acknowledging receipt of an Arbitration Agreement in Defendant’s Employee Handbook on March 27, 2012, and similar agreement in 2007, which bind Plaintiff to arbitration of his employment-related claims. Plaintiff has opposed. Adventist has replied. The court permitted a sur-reply, which Plaintiff filed and served on March 18, 2021.

1. Existence of Arbitration Agreement

When presented with a petition to compel arbitration, the trial court's first task is to determine whether an agreement exists, and, if any defense to enforcement is raised, whether it is enforceable. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) The petitioner bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. (Id.)

Adventist attaches to the moving papers evidence of an Acknowledgement dated March 27, 2012 and signed with Plaintiff’s signature. (Del Castillo Decl ¶ 6, Exh. A.) The Acknowledgement acknowledges receipt of the Employee Handbook and the policies, procedures, rules and regulations in it, and states: “In the event that I am dissatisfied or disagree with any action or failure to act by the hospital or its agents, I agree to submit the matter to the hospital’s Grievance and Arbitration Procedures, which are contained in the Handbook, for final and binding resolution.” (Id.) Adventist attaches as well the Dispute Resolution Procedures contained in that 2012 Employee Handbook. (Del Castillo Decl. ¶ 7, Exh. B.) The section is entitled “AS YOU CONTINUE [¶] DISPUTE RESOLUTION PROCEDURES” and states that the Organization has established two procedures designed to assist in the resolution of employment disputes in the Grievance Procedure and the Arbitration Procedure. (Id.) The Arbitration Procedure section, starting on page 3, states in relevant part:

Arbitrable disputes by an employee are those disputes that are made within the applicable statute of limitations and which arose out of, or are related to, (i) a claim of employment discrimination (including, but not limited to, discriminatory retaliation, and discriminatory or sexual harassment); (ii) a claim of wrongful or unlawful termination of employment, including claims of constructive discharge; (iii) a claim for wages or other compensation; (iv) a tort claim or any other claim in which punitive damages or emotional distress damages could be awarded that arose out of, or is related to, the employment relationship; (v) a claim that is related in any manner to the claims described in (i) through (iv) of this paragraph. . . .

Arbitration pursuant to this Arbitration Procedure shall be the exclusive remedy for resolving any such arbitrable disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under this Arbitration Procedure. Otherwise, the rights of the parties under this Arbitration Procedure shall be the same as those available to them in a court of competent jurisdiction. . . .

This Arbitration Procedure shall be governed by the Federal Arbitration Act and the Arbitration Act of the state in which the Organization is located. This Agreement may be enforced and administered by a court of competent jurisdiction through the filing of a petition to compel arbitration . . . .

This Arbitration Procedure is a binding contract between the Organization and its employees. Acceptance of employment or continuation of employment with the Organization is deemed to be acceptance of this Arbitration Procedure; however, nothing in this Arbitration Procedure alters the at-will nature of employment at the Organization.

(Id.)

The court as above has accepted the authentication of the documents. The court notes that Plaintiff does not actually dispute that he signed the documents and does not attest that he never received them. (See Carter Decl. 3-4.)

Plaintiff has not opposed on grounds that the arbitration agreement does not cover his employment-related claims under FEHA, for declaratory relief, and for wrongful termination in violation of public policy, which each appear to fall under the claims listed in the Arbitration Procedure. (See Del Castillo Decl. ¶ 7, Exh. B.)

The court permitted the Plaintiff to file a sur-reply. In the sur-reply, Plaintiff alleges the instant case is analogous to Flores v. Nature’s Best Distribution, LLC (2016) 7 Cal.App.5th 1 (Flores). In Flores, the Agreement nowhere identified with which entity the plaintiff had agreed to submit disputes to arbitration. (See Flores, 7 Cal.App.5th at 9.) Here, however, the Acknowledgement from 2012 indicates the receipt of the Employee Handbook and mentions the “hospital” and the Acknowledgement from 2007 indicates the receipt of the “Adventist Health Employee Handbook” and states: “In the event that I am dissatisfied or disagree with any action or failure to act by Adventist Health or its agents, I agree to submit the matter to the Grievance and Arbitration Procedures, which are contained in the Handbook, for final and binding resolution.” (Del Castillo Decl. ¶¶ 6, 8, Exhs. A, C.) Defendant’s declarant on reply attaches the 2012 Employee Handbook, which indicates Adventist Health as employer. (Reply, Del Castillo Decl. ¶ 8, Exh. D.) The case is not analogous under these facts.

Plaintiff also alleges the Court in Flores validated the trial court’s ruling on grounds that a plaintiff had not been explained what arbitration meant and did not recall being presented with the arbitration agreement. As with Plaintiff’s argument to authentication, however, the Court of Appeal reviewing de novo did not address this reasoning by the trial court and thus the case does not provide authority for this argument. (See id. at 9-10.)

Based on the foregoing, Adventist upholds the burden to show the existence of an agreement to arbitrate and that his claims fall under its scope.

 

2. Defenses to Enforcement

The burden shifts to the party opposing arbitration to show that the subject agreement is unenforceable. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) Arbitration agreements may be denied enforcement “upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The opponent to arbitration bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (Espejo, 246 Cal.App.4th at 1057.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677, 686.)

Unconscionability

The opponent to arbitration bears the burden of proving unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 247.)

A common formulation of unconscionability is that it 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.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).) The doctrine of unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Id.) Both procedural and substantive unconscionability must be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. (Id.) But both components need not be present in the same degree; “[e]ssentially 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.” (Id. (quoting Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.))

Procedural Unconscionability

Plaintiff asserts the arbitration agreement is procedurally unconscionable, as it is a contract of adhesion provided to Plaintiff as a condition of his employment, for which Plaintiff had no opportunity for negotiation.

A contract of adhesion signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Neal v. State Farm Ins. Companies (1961) 188 Cal.App.2d 690, 694.) Procedural unconscionability arises when the party had no opportunity to negotiate the terms of the contract or when the party is surprised by terms being hidden in a prolix printed form drafted by the party seeking to enforce them. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.)

Plaintiff has brought evidence that, on at least one occasion, Adventist employees were given documents to sign and no opportunity to review what they were signing; that the employees stated they did not want to sign something without an opportunity to review it; and that supervisors said they were not signing documents as an agreement to anything and that all our signatures meant were acknowledging receipt of some documents; and that Plaintiff was told he had to sign them on the day he received them. (Carter Decl. ¶ 5.) Plaintiff attest that, if the Arbitration Procedure in the Employee Handbook was given to him around March 12no one explained what an arbitration agreement was, and he did not understand what it was. (Id. ¶ 6.) Plaintiff attests that, if he signed Exhibit A, which he does not recall, he did not have an opportunity to read any document before being required to sign; and that no one reviewed or discussed the Arbitration Procedure with him or said it was negotiable or there was any way to opt out; and that he never received a copy of the Arbitration Procedure until this litigation. (Id. ¶¶ 7-8.)

The foregoing does not provide competent evidence, as the testimony is speculative whether the circumstances described by Plaintiff are actually those related to the documents here at issue. Plaintiff has also not provided evidence that he was required to sign the acknowledgement as a condition of his employment. Nonetheless, the court considers that Adventist is a party of superior bargaining strength under the circumstances.

With respect to Plaintiff’s allegations that he never received a copy of the Arbitration Procedure, Defendant on reply has offered evidence that it is Adventist’s usual policy to distribute the Handbook to new employees, and if revised, to make the revised Handbook available to employees and will make the Handbook physically available upon request; and that employees are also given access to the Employee Handbook via the intranet. (Reply, Del Castillo Decl., ¶¶ 3, 9, 10.) Plaintiff’s sur-reply brings the court’s attention to Plaintiff’s testimony that he does not remember Exhibits B and D, and does not recall receiving an agreement to arbitrate. Again, however, this does not provide competent evidence that Plaintiff did not in fact receive or view the arbitration agreements. Next, “[a] cardinal rule of contract law is that a party's failure to read a contract, or to carefully read a contract, before signing it is no defense to the contract's enforcement.” (Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872.) To the extent that the Plaintiff argues that his testimony specifically relates to the circumstances at hand, the court is not persuaded that it is sufficient to show procedural unconscionability. To establish fraud in the execution, a party must show reasonable reliance, and it is not reasonable to fail to read the contents of a contract, even if the other states it was not necessary to read the contract. (Id. at 873.) The court does not conclude that it was reasonable for Plaintiff to fail to read the Employee Handbook referenced in the Acknowledgement, in light that the Acknowledgement itself states that in the event of any dissatisfaction or disagreement with the hospital or its agents, Plaintiff would “agree to submit the matter to the hospital’s Grievance and Arbitration Procedures, which are contained in the Handbook, for final and binding resolution.” (Del Castillo Decl. ¶ 6, Exh. A.)

Plaintiff alleges that the Arbitration Procedure is procedurally unconscionable because Adventist did not provide information or access to the rules and procedures of the arbitration, despite mentioning that the parties must obtain a strike list from JAMS. Plaintiff relies on Trivedi v. Curexo Technology Corp., but the reliance is misplaced as the case concerned an agreement in which mandatory rules were integrated into the agreement and not provided. ((2010) 189 Cal.App.4th 387, 393, disapproved of on other grounds by Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237) (“Numerous cases have held that the failure to provide a copy of the arbitration rules to which the employee would be bound, supported a finding of procedural unconscionability.”) However, the Arbitration Procedure does not purport to integrate JAMS rules and refers to JAMS only insofar as the Arbitration Procedure requires the parties to select an arbitrator from its list of arbitrators. (See Del Castillo Decl. ¶ 7, Exh. B, at p. 4.)

Plaintiff thus shows a low level of procedural unconscionability.

Substantive Unconscionability

Substantive unconscionability may be shown by agreement terms that are “overly harsh,” “unduly oppressive,” “unreasonably unfavorable,” “so one-sided as to shock the conscience,” all of which means the same thing; analysis is not concerned with “a simple old-fashioned bad bargain.” (See Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-12.)

Plaintiff alleges the Arbitration Procedures are substantively unconscionable because (1) it does not provide the defendant will bear all costs; (2) the selection of arbitrator procedure is arbitrary and not mutual; and (3) it does not provide for adequate discovery.

As an initial matter, the Arbitration Procedure does not disclose a one-sided nature, and requires both sides to arbitrate disputes. (See Del Castillo Decl. ¶ 7, Exh. B, at p. 3 (“Arbitrable disputes by the Organization are those claims against an employee that are made within the applicable statute of limitations and which arose out of, or are related to, the employment relationship. Arbitration pursuant to this Arbitration Procedure shall be the exclusive remedy for resolving any such arbitrable disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under this Arbitration Procedure.”).

Next, “a mandatory employment arbitration agreement that contains within its scope the arbitration of FEHA claims impliedly obliges the employer to pay all types of costs that are unique to arbitration.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113 (Armendariz).) Plaintiff’s argument that Armendariz requires the employer to pay all costs is an overstatement of this rule. The Arbitration Procedure states: “To the extent required by applicable law, and only to this extent, the Organization shall pay all costs uniquely attributable to arbitration, including the administrative fees and costs of the arbitrator.” (See Del Castillo Decl. ¶ 7, Exh. B, at p. 4.) The court does not find unconscionability on this ground.

Next, Plaintiff provides no authority or argumentation that the Arbitration Procedure’s strike list rules are unconscionable by setting “arbitrary” deadlines. Plaintiff offers no authority that the Arbitration Procedure must strictly adhere to rules on striking arbitrators provided by JAMS, or that deviance from those rules supports unconscionability. Further, as written above, the Arbitration Procedure does not purport to integrate the JAMS rules with which a conflict is asserted. The court does not find unconscionability on this ground.

Plaintiff last alleges the existence of substantive unconscionability on grounds that the arbitration procedures limit discovery by requiring confidentiality. The Arbitration Procedure provides: “All arbitration proceedings are confidential, unless applicable law provides otherwise. The arbitrator shall maintain the confidentiality of the arbitration to the extent the law permits and shall have the authority to make appropriate rulings to safeguard that confidentiality.” (Del Castillo Decl. ¶ 7, Exh. B, at p. 4.) Plaintiff appears to assert that the arbitration as confidential limits Plaintiff’s ability to obtain relevant discovery by interviewing witnesses. However, the Arbitration Procedure provides that the arbitrator may issue subpoenas to compel the testimony of third-party witnesses or production of documents, and discovery may be initiated by the parties after the selection of the arbitrator without first obtaining permission from the arbitrator, and that discovery is limited by the applicable procedural rules of the state in which the Organization is located. (See id. at p. 5.) The court does not find support for Plaintiff’s argument in the language of the Arbitration Procedure, nor authority for Plaintiff’s argument.

Based on the foregoing, the court does not find the agreement substantively unconscionable.

As the Plaintiff does not show substantive unconscionability, Plaintiff likewise has not carried the burden to show the Arbitration Procedure is unenforceable.

The motion to compel arbitration is granted.

3. Stay of Proceedings

Upon motion of a party, a court shall stay an action or proceeding pending before it until an arbitration is had in accordance with the order to arbitrate. (CCP § 1281.4.) Accordingly, the court grants Defendant’s request and stays the entire action pending outcome of the arbitration.

II. Demurrer

Stay of Proceedings

As the court has stayed proceedings, and in particular considering the potential of conflicting rulings with the pending arbitration, the court does not proceed to address the demurrer of GE Precision Healthcare, LLC erroneously sued as GE Healthcare, Inc., to the Complaint.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: 20STCV25774    Hearing Date: March 02, 2021    Dept: 36

 

*COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING* 

 

Superior Court of California

County of Los Angeles

Department 36

PARIS CARTER, an individual,

Plaintiff,

v.

ADVENTIST HEALTH SYSTEM/WEST, a California domestic nonprofit corporation; GE HEALTHCARE INC., a Delaware corporation; and DOES 1 through 20, inclusive,

Defendant.

Case No.: 20STCV25774

Hearing Date: 3/2/2021

[TENTATIVE] RULING RE: Motion to Compel Arbitration; Demurrer

The Motion to Compel Arbitration is granted.

Proceedings are ordered stayed pending the outcome of arbitration.

The court does not reach the merits of Defendant GE Healthcare, Inc.’s demurrer.

I. Motion to Compel Arbitration

Plaintiff’s Objections to Defendant’s Evidence

Plaintiff’s objections on grounds of foundation, authentication, personal knowledge, hearsay, and relevance are each OVERRULED. Adventist’s declarant has demonstrated personal knowledge and competency for her testimony. (Del Castillo Decl. ¶¶ 1, 4, 5.) The testimony is relevant to the issues here to be resolved.

With respect to authenticity, the court notes the applicability of Ruiz v. Moss Bros. Auto Group, Inc. discussing analogous circumstances in which the party opposing arbitration asserted he did not recall signing the arbitration agreement:

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. [Citations.] Though Ruiz did not deny that the electronic signature on the 2011 agreement was his, he claimed he did not recall signing the 2011 agreement and would not have signed it had it been presented to him. In the face of Ruiz's failure to recall signing the 2011 agreement, Moss Bros. had the burden of proving by a preponderance of the evidence that the electronic signature was authentic (Evid. Code, § 1401) . . . .

((2014) 232 Cal.App.4th 836, 846.) Here, on reply, Adventist has provided supplemental evidence in support that the Plaintiff’s signatures are authentic by showing similar signatures on several documents in Plaintiff’s personnel file. (Reply, Del Castillo Decl. ¶¶ 4-6, Exhs. A-C.) Plaintiff concedes that the signatures bear resemblance to his signature. (Carter Decl. ¶ 3.) The foregoing is sufficient to demonstrate the genuineness of the signature. (Evid. Code §§ 1415, 1416(b), (d).)

With respect to hearsay allegations, Adventist has offered supplemental evidence that the business records were made and maintained in the normal course and scope of Defendant’s business. (Reply, Del Castillo Decl. ¶¶ 2-4.)

However, the general rule of motion practice is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) When inclusion of such evidence is permitted, the other party should be given the opportunity to respond. (See id.) Here, the reply evidence has been submitted in response to Plaintiff’s argument on authenticity and should be considered. The court will hear from the parties on the evidence submitted with Plaintiff’s reply, and if satisfied, rules as above, and will proceed to address the remainder of the motion below.

Legal Authority

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.” (CCP § 1281.)

When presented with a petition to compel arbitration, the trial court's first task is to determine whether the agreement exists, and, if any defense to enforcement is raised, whether it is enforceable. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) The petitioner bears the burden of proving its existence by a preponderance of the evidence. (Id.)

If the party seeking arbitration bears its burden, the burden shifts to the opposing party to show that the subject agreement is unenforceable by a preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) The opponent to arbitration bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (Espejo, 246 Cal.App.4th at 1057.)

The court “sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 972.)

A court is not mandated to compel arbitration if it determines that: “A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (CCP § 1281.2(c).) A third party is one who is not bound by the arbitration agreement. (Bush v. Horizon West (2012) 205 Cal.App.4th 924, 928, as modified (Apr. 30, 2012).) In that case, a court “(1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” (CCP § 1281.2(d).)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677, 686.)

 

Discussion

Defendant Adventist Health System/West (“Adventist”) moves to compel arbitration of this action pursuant to the Federal Arbitration Act and California Code of Civil Procedure, sections 1280, et seq. Adventist’s grounds are that Plaintiff executed an Acknowledgement Agreement acknowledging receipt of an Arbitration Agreement in Defendant’s Employee Handbook on March 27, 2012, and similar agreement in 2007, which bind Plaintiff to arbitration of his employment-related claims. Plaintiff has opposed. Adventist has replied.

1. Existence of Arbitration Agreement

When presented with a petition to compel arbitration, the trial court's first task is to determine whether an agreement exists, and, if any defense to enforcement is raised, whether it is enforceable. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) The petitioner bears the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence. (Id.)

Adventist attaches to the moving papers evidence of an Acknowledgement dated March 27, 2012 and signed with Plaintiff’s signature. (Del Castillo Decl ¶ 6, Exh. A.) The Acknowledgement acknowledges receipt of the Employee Handbook and the policies, procedures, rules and regulations in it, and states: “In the event that I am dissatisfied or disagree with any action or failure to act by the hospital or its agents, I agree to submit the matter to the hospital’s Grievance and Arbitration Procedures, which are contained in the Handbook, for final and binding resolution.” (Id.) Adventist attaches as well the Dispute Resolution Procedures contained in that 2012 Employee Handbook. (Del Castillo Decl. ¶ 7, Exh. B.) The section is entitled “AS YOU CONTINUE [¶] DISPUTE RESOLUTION PROCEDURES” and states that the Organization has established two procedures designed to assist in the resolution of employment disputes in the Grievance Procedure and the Arbitration Procedure. (Id.) The Arbitration Procedure section, starting on page 3, states in relevant part:

Arbitrable disputes by an employee are those disputes that are made within the applicable statute of limitations and which arose out of, or are related to, (i) a claim of employment discrimination (including, but not limited to, discriminatory retaliation, and discriminatory or sexual harassment); (ii) a claim of wrongful or unlawful termination of employment, including claims of constructive discharge; (iii) a claim for wages or other compensation; (iv) a tort claim or any other claim in which punitive damages or emotional distress damages could be awarded that arose out of, or is related to, the employment relationship; (v) a claim that is related in any manner to the claims described in (i) through (iv) of this paragraph. . . .

Arbitration pursuant to this Arbitration Procedure shall be the exclusive remedy for resolving any such arbitrable disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under this Arbitration Procedure. Otherwise, the rights of the parties under this Arbitration Procedure shall be the same as those available to them in a court of competent jurisdiction. . . .

This Arbitration Procedure shall be governed by the Federal Arbitration Act and the Arbitration Act of the state in which the Organization is located. This Agreement may be enforced and administered by a court of competent jurisdiction through the filing of a petition to compel arbitration . . . .

This Arbitration Procedure is a binding contract between the Organization and its employees. Acceptance of employment or continuation of employment with the Organization is deemed to be acceptance of this Arbitration Procedure; however, nothing in this Arbitration Procedure alters the at-will nature of employment at the Organization.

(Id.)

The court as above has accepted the authentication of the documents. The court notes that Plaintiff does not actually dispute that he signed the documents and does not attest that he never received them. (See Carter Decl. 3-4.)

Plaintiff has not opposed on grounds that the arbitration agreement does not cover his employment-related claims under FEHA, for declaratory relief, and for wrongful termination in violation of public policy, which each appear to fall under the claims listed in the Arbitration Procedure. (See Del Castillo Decl. ¶ 7, Exh. B.)

Based on the foregoing, Adventist upholds the burden to show the existence of an agreement to arbitrate and that his claims fall under its scope.

 

2. Defenses to Enforcement

The burden shifts to the party opposing arbitration to show that the subject agreement is unenforceable. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) Arbitration agreements may be denied enforcement “upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The opponent to arbitration bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. (Espejo, 246 Cal.App.4th at 1057.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677, 686.)

Unconscionability

The opponent to arbitration bears the burden of proving unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 247.)

A common formulation of unconscionability is that it 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.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).) The doctrine of unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Id.) Both procedural and substantive unconscionability must be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. (Id.) But both components need not be present in the same degree; “[e]ssentially 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.” (Id. (quoting Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.))

Procedural Unconscionability

Plaintiff asserts the arbitration agreement is procedurally unconscionable, as it is a contract of adhesion provided to Plaintiff as a condition of his employment, for which Plaintiff had no opportunity for negotiation.

A contract of adhesion signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Neal v. State Farm Ins. Companies (1961) 188 Cal.App.2d 690, 694.) Procedural unconscionability arises when the party had no opportunity to negotiate the terms of the contract or when the party is surprised by terms being hidden in a prolix printed form drafted by the party seeking to enforce them. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.)

Plaintiff has brought evidence that, on at least one occasion, Adventist employees were given documents to sign and no opportunity to review what they were signing; that the employees stated they did not want to sign something without an opportunity to review it; and that supervisors said they were not signing documents as an agreement to anything and that all our signatures meant were acknowledging receipt of some documents; and that Plaintiff was told he had to sign them on the day he received them. (Carter Decl. ¶ 5.) Plaintiff attest that, if the Arbitration Procedure in the Employee Handbook was given to him around March 12no one explained what an arbitration agreement was, and he did not understand what it was. (Id. ¶ 6.) Plaintiff attests that, if he signed Exhibit A, which he does not recall, he did not have an opportunity to read any document before being required to sign; and that no one reviewed or discussed the Arbitration Procedure with him or said it was negotiable or there was any way to opt out; and that he never received a copy of the Arbitration Procedure until this litigation. (Id. ¶¶ 7-8.)

The foregoing does not provide competent evidence, as the testimony is speculative whether the circumstances described by Plaintiff are actually those related to the documents here at issue. Plaintiff has also not provided evidence that he was required to sign the acknowledgement as a condition of his employment. Nonetheless, the court considers that Adventist is a party of superior bargaining strength under the circumstances.

With respect to Plaintiff’s allegations that he never received a copy of the Arbitration Procedure, Defendant on reply has offered evidence that it is Adventist’s usual policy to distribute the Handbook to new employees, and if revised, to make the revised Handbook available to employees and will make the Handbook physically available upon request; and that employees are also given access to the Employee Handbook via the intranet. (Reply, Del Castillo Decl., ¶¶ 3, 9, 10.) As above, however, the court notes that Plaintiff must be given an opportunity to respond to this evidence filed on reply. The court will hear from the parties on the evidence submitted with Plaintiff’s reply, and if satisfied, rules as following.

“A cardinal rule of contract law is that a party's failure to read a contract, or to carefully read a contract, before signing it is no defense to the contract's enforcement.” (Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872.) To the extent that the Plaintiff argues that his testimony specifically relates to the circumstances at hand, the court is not persuaded that it is sufficient to show procedural unconscionability. To establish fraud in the execution, a party must show reasonable reliance, and it is not reasonable to fail to read the contents of a contract, even if the other states it was not necessary to read the contract. (Id. at 873.) The court does not conclude that it was reasonable for Plaintiff to fail to read the Employee Handbook referenced in the Acknowledgement, in light that the Acknowledgement itself states that in the event of any dissatisfaction or disagreement with the hospital or its agents, Plaintiff would “agree to submit the matter to the hospital’s Grievance and Arbitration Procedures, which are contained in the Handbook, for final and binding resolution.” (Del Castillo Decl. ¶ 6, Exh. A.)

Plaintiff alleges that the Arbitration Procedure is procedurally unconscionable because Adventist did not provide information or access to the rules and procedures of the arbitration, despite mentioning that the parties must obtain a strike list from JAMS. Plaintiff relies on Trivedi v. Curexo Technology Corp., but the reliance is misplaced as the case concerned an agreement in which mandatory rules were integrated into the agreement and not provided. ((2010) 189 Cal.App.4th 387, 393, disapproved of on other grounds by Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237) (“Numerous cases have held that the failure to provide a copy of the arbitration rules to which the employee would be bound, supported a finding of procedural unconscionability.”) However, the Arbitration Procedure does not purport to integrate JAMS rules and refers to JAMS only insofar as the Arbitration Procedure requires the parties to select an arbitrator from its list of arbitrators. (See Del Castillo Decl. ¶ 7, Exh. B, at p. 4.)

Plaintiff thus shows a low level of procedural unconscionability.

Substantive Unconscionability

Substantive unconscionability may be shown by agreement terms that are “overly harsh,” “unduly oppressive,” “unreasonably unfavorable,” “so one-sided as to shock the conscience,” all of which means the same thing; analysis is not concerned with “a simple old-fashioned bad bargain.” (See Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-12.)

Plaintiff alleges the Arbitration Procedures are substantively unconscionable because (1) it does not provide the defendant will bear all costs; (2) the selection of arbitrator procedure is arbitrary and not mutual; and (3) it does not provide for adequate discovery.

As an initial matter, the Arbitration Procedure does not disclose a one-sided nature, and requires both sides to arbitrate disputes. (See Del Castillo Decl. ¶ 7, Exh. B, at p. 3 (“Arbitrable disputes by the Organization are those claims against an employee that are made within the applicable statute of limitations and which arose out of, or are related to, the employment relationship. Arbitration pursuant to this Arbitration Procedure shall be the exclusive remedy for resolving any such arbitrable disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under this Arbitration Procedure.”).

Next, “a mandatory employment arbitration agreement that contains within its scope the arbitration of FEHA claims impliedly obliges the employer to pay all types of costs that are unique to arbitration.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113 (Armendariz).) Plaintiff’s argument that Armendariz requires the employer to pay all costs is an overstatement of this rule. The Arbitration Procedure states: “To the extent required by applicable law, and only to this extent, the Organization shall pay all costs uniquely attributable to arbitration, including the administrative fees and costs of the arbitrator.” (See Del Castillo Decl. ¶ 7, Exh. B, at p. 4.) The court does not find unconscionability on this ground.

Next, Plaintiff provides no authority or argumentation that the Arbitration Procedure’s strike list rules are unconscionable by setting “arbitrary” deadlines. Plaintiff offers no authority that the Arbitration Procedure must strictly adhere to rules on striking arbitrators provided by JAMS, or that deviance from those rules supports unconscionability. Further, as written above, the Arbitration Procedure does not purport to integrate the JAMS rules with which a conflict is asserted. The court does not find unconscionability on this ground.

Plaintiff last alleges the existence of substantive unconscionability on grounds that the arbitration procedures limit discovery by requiring confidentiality. The Arbitration Procedure provides: “All arbitration proceedings are confidential, unless applicable law provides otherwise. The arbitrator shall maintain the confidentiality of the arbitration to the extent the law permits and shall have the authority to make appropriate rulings to safeguard that confidentiality.” (Del Castillo Decl. ¶ 7, Exh. B, at p. 4.) Plaintiff appears to assert that the arbitration as confidential limits Plaintiff’s ability to obtain relevant discovery by interviewing witnesses. However, the Arbitration Procedure provides that the arbitrator may issue subpoenas to compel the testimony of third-party witnesses or production of documents, and discovery may be initiated by the parties after the selection of the arbitrator without first obtaining permission from the arbitrator, and that discovery is limited by the applicable procedural rules of the state in which the Organization is located. (See id. at p. 5.) The court does not find support for Plaintiff’s argument in the language of the Arbitration Procedure, nor authority for Plaintiff’s argument.

Based on the foregoing, the court does not find the agreement substantively unconscionable.

As the Plaintiff does not show substantive unconscionability, Plaintiff likewise has not carried the burden to show the Arbitration Procedure is unenforceable.

The motion to compel arbitration is granted.

3. Stay of Proceedings

Upon motion of a party, a court shall stay an action or proceeding pending before it until an arbitration is had in accordance with the order to arbitrate. (CCP § 1281.4.) Accordingly, the court grants Defendant’s request and stays the entire action pending outcome of the arbitration.

II. Demurrer

Stay of Proceedings

As the court has stayed proceedings and considering the potential of conflicting rulings with the pending arbitration, the court does not proceed to address the demurrer of GE Precision Healthcare, LLC erroneously sued as GE Healthcare, Inc., to the Complaint.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

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