Motion_to_compel_arbitrationMotionCal. Super. - 2nd Dist.August 12, 2019Electronically FILED by Superior Court of California, County of Los Angeles on 07/15/2020 12:42 PM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ernest W. “Will” Klatte, III (State Bar No. 115914) ewklatte @kbylaw.com Summer Young-Agriesti (State Bar No. 232883) syoung @kbylaw.com Ana Thomas (State Bar No. 251578) athomas @kbylaw.com Klatte, Budensiek & Young-Agriesti, LLP 1111A Quail Street Newport Beach, California 92660 Telephone: (949) 221-8700 Facsimile: (949) 222-1044 Attorneys for Defendant TEAM CAR CARE, LLC f/k/a HEARTLAND AUTOMOTIVE SERVICES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT GUILLERMO GARCIA, an individual, CASE No.: 19STCV28434 VS. Plaintiff, ASSIGNED TO THE HONORABLE DAVID SOTELO DEPARTMENT 40 HEARTLAND AUTOMOTIVE SERVICES, | DEFENDANT’S NOTICE OF MOTION INC., a California corporation; AND MOTION FOR AN ORDER HEARTLAND AUTOMOTIVE SERVICES COMPELLING PLAINTIFF GUILLERMO IL, INC., a California Corporation; JIFFY GARCIA TO BINDING ARBITRATION; LUBE INTERNATIONAL, INC. a California | MEMORANDUM OF POINTS AND Corporation; JIFFY LUBE, a business entity of | AUTHORITIES IN SUPPORT THEREOF unknown form; HEARTLAND JIFFY LUBE a business entity of unknown form; HEARTLAND JIFFY LUBE 3007, a business | [Filed concurrently with Declarations of Ernest entity of unknown form; HEARTLAND W. (“Will”) Klatte, III, Rosibel Romero, and AUTOMOTIVE SVC, INC., a business entity | Exhibits thereto; Motion for Immediate Stay; and of unknown form; and DOES 1-50, [Proposed] Order] Defendants. Hearing (Reservation ID 062429888498) Date: September 9, 2020 Time: 9:30 a.m. Dept.: 40 Date Action Filed: August 12, 2019 Trial Date: None Set 014/1298-010 200629 a07/15/20 1- MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO GARCIA TO BINDING ARBITRATION AN nn Bs W N TABLE OF CONTENTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200629 a07/15/20 TABLE OF AUTHORITIES ......ooiiiii eects cect sect eects see sees nee sane ea 3 MEMORANDUM OF POINTS AND AUTHORITIES ......ccccooiiiiiiiiiteieeeenee cece 6 LL. INTRODUCTION .....cootititieeit ete eects sects ees sere eects sree sere ee eens sees sane eae 6 II. STATEMENT OF FACTS .......oooiiiiiiii iii sess 6 A. The Company’s Nationwide Business Operations...........cecueeveereerseeeneeenecneennnens 6 B. The Company’s Mutual Arbitration Agreement ..........coceeveeeueereenseenieenecneennen. f) C. Plaintiff Twice Signs and Acknowledges the Arbitration Agreement.................... 8 I. Plaintiff Electronically Signs the Agreement upon Hire...........ccocceveeeennen. 8 a. Plaintiff Electronically Signs the Agreement Again upon the Company Changing Platforms for Personnel Recordkeeping...................... 10 Plaintiff Files Suit and Refuses to Stipulate to Arbitration...........ccccevveeerveenenee. 10 ARGUMENT iss evs sunsssssnas own swnns ss sues ossssnasss somos ass ves 555 v50ues S45 50 55 a5 A008 SVS 33 S955 FRUITS 10 The Court Must Compel Arbitration in the Face of a Valid Agreement by the Parties to Arbitrate...........ccooeevieiiiiiiiniiiniceceeercceee 10 Under the Federal Arbitration Act and California Arbitration Act, Courts Have No Discretion to Deny a Proper Motion to Compe] ATDIFATION ....eeiuvieiiiie cites ete eee eects sees sabe ee sabe eee 11 Enforcing the Agreement Comports with Federal and State Policy Favoring Arbitration ..........cccceeceevnienieeieeniinniesie cece cece see ee 14 The Arbitration Agreement Is Lawful and Enforceable under the Standard Set by Armendariz v. Found. Health Psychcare SEPVICES, ITC. «ooovveveeeeeeeie ieee eee eee eters esas ease at sees sees seveaaans 16 CONCLUSION eee eee eee ete e estas eae ae ae ae aeae ease ae se seseseneneaesenenenes 16 PROOF OF SERVICE .....ooooeeieieeeeeeeeeee te ta eee e eset eae ae ses ae se seae ease nese se se senenenen 17 9 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) FEDERAL CASES AT&T Mobility LLC v. Concepcion, DO LLB B38 {IDL} ssosmmusnnssesssmssenomssessusssssensontosossonss ssn en ss s S00 0A A A SRB SAMA 14 Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir. 2000) .....eoeiiiiiiieiieeiie e e eters eee e ee saae sabe eie ee eees 12 Dean Witter Reynolds, Inc. v. Byrd, AT0 TLS. 213 (1985) etic st te sete e ete e shee sateen ates bee sbeeeebeenns 12, 15 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., ABO LIB 1 CLOBRY suiiciarssann sans wisn ooss 5555s 50555 50-i5.0955555 5558 G35 FSS S355 8 AAA 3575 14, 15 Rent-A-Ctr., W., Inc. v. Jackson, SOT U.S. 63 (2010) uveitis eters shee sete e teste sbbe este e eee bee shite esse anne eneesaae ees 14 Southland Corp. v. Keating, AOS ULS. 1 (1984) niece eee eee eee eee sbae sabe e ieee bee snae ees 11, 14,15 FEDERAL STATUTES O ULS CL 88 I eee eee eee teeth esate estes bee eb bee sb eee estes sabe sabe ens 5, 11, 12 0 U.S iC. deere eee ee eee t teehee atte atte et e hte ante a nee e bee ehte ante e nee e tae eaae an 12 IS TLS CL § TOOT eee eee este eee atest ee she eae eee ete e sb be eabe esse eeseesaae esse anseeenseesaaaans 11 STATE CASES Armendariz v. Found. Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000) ...eeeiueieiieeiie etter te etter ee etteetae atest te erae sabe a eee t ee ebte este eneeetaeesae eas 16 Coast Plaza Doctors Hosp. v. Blue Cross of California, 83 Cal. App. AH B77 (ZOOS wssrossrmsmmesmnsusns ovasmsssmensomsnsmssomess os s s mss w SE 14, 15 Commerce Clause.” Giuliano v. Inland Empire Pers., Inc., 149 Cal. App. 4th 1276 (2007) eeeeeieeiieeiie eee eee eet sete eee s tee st ee sees snbe esse ee seessee ees 11 Engalla v. Permanente Med. Group, Inc., 15 Cal. 4th O51 (1997) eee ects eee etter sabe sabes bee sbbe ss be ase eetaesaae ens 15 Shepard v. Edward Mackay Enterprises, Inc., 148 Cal, App: Ah 1092 (ZOUT) sumanss swssoss.snsmwsnss snmsssas somes sss i6 555555 £55555 55 555558 5550555.5 5555555 5555 11-12 Vernon v. Drexel Burnham & Co., 52 Cal. APP. 3d TOO (1975) cnet eters sabe sees b ee sabe este ase ee seesaae eas 15 qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (CONTINUED) Page(s) STATE STATUTES Cal. Civ. COE § 1633.7 eee eee eects st teste sees tee sbbe sateen sees b ee sbbe esse ase eeseeesaa ees 11 Cal. Civ. Proc. Code § 1280, © SEQ. weervreerrreeiiieeiiieeitie eres s tes e t s t ee seit ee sare s sabe ee sane eees 5,7,8,10 Cal. Civ. Proc. Code § 1281 ..ooveeiiiiieiieieiiieieeeetieeeeeae ee aeeeae ee ates ae ae seas assess seas aea aeaesessasa asass asaseeseaeaes 14 Cal. Civ. Proc. Code § 1281.2 ..oueeieieieieiiiieieeeieeeeeeeee ae aeeeeeaeaeaee teas s seas seve a aeae assesses aeses aeaeeeaeaes 14 4- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF GUILLERMO GARCIA AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 9, 2020, at 9:30 a.m., or as soon thereafter as the matter can be heard, in Department 40 of the above-named court, located at 111 North Hill Street, Los Angeles, California 90012 defendant Team Car Care, LLC f/k/a Heartland Automotive Services, Inc. (“the Company”) will, and hereby does, move the court, pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 (2012), et seq., and California Arbitration Act, Cal. Civ. Proc. Code § 1280, et seq., for an order compelling plaintiff Guillermo Garcia (“Plaintiff”) to submit his pending claims in the above-captioned case to binding arbitration. This motion is made on the ground that the parties entered into a binding arbitration agreement that covers the claims in this action. Plaintiff has refused to voluntarily submit his claims to binding arbitration in accordance with the parties’ agreement. This motion is based on this notice, the attached memorandum of points and authorities, the concurrently filed declarations of the undersigned and Rosibel Romero and exhibits thereto, the files and records in this action, and such further evidence as may be presented at or before the court’s hearing of the motion. Dated: July 15, 2020 Klatte, Budensiek & Young-Agriesti, LLP o ——— 5 OA Ernest W. “Will” Klatte, III Attorneys for Defendant TEAM CAR CARE, LLC f/k/a HEARTLAND AUTOMOTIVE SERVICES, INC. -5- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This motion by defendant Team Car Care, LLC f/k/a Heartland Automotive Services, Inc. (the “Company”) seeks to enforce its agreement with plaintiff Guillermo Garcia (“Plaintiff”) to resolve all disputes arising out of their employment relationship by binding arbitration. Twice during his brief employment with the Company, Plaintiff signed an agreement that called for the arbitration of the very claims he now brings before this court. Plaintiff has since refused the Company’s request that he submit these claims to arbitration. The Company thus requires the court’s intervention to compel Plaintiff to honor the agreement he made and arbitrate his present claims. Such relief is warranted by the Federal Arbitration Act and California Arbitration Act, by federal and state policy favoring arbitration, and by the arbitration agreement itself, which is lawful and enforceable under California law. Accordingly, the court should grant the Company’s motion and order Plaintiff to binding arbitration pursuant to the parties’ agreement. II. STATEMENT OF FACTS A. The Company’s Nationwide Business Operations Headquartered in Irving, Texas, the Company is an automotive service company with a nationwide system of retail stores located throughout the country. Declaration of Rosibel Romero (“Romero Decl.”), 3. The Company is engaged in interstate commerce. Id. It offers sales and installation of automotive batteries and windshield blades, as well as a wide variety of automotive repair and maintenance services. Id. The Company’s employees routinely engage in the sale of products, such as automotive batteries and windshield blades, that are installed on customers’ vehicles and released into the stream of commerce. Id. The Company communicates with its California stores, employees, and customers through various means, including U.S. mail, telephone, and Internet. Id. The Company also services national fleet accounts pursuant to fleet agreements that permit vehicles from any state to be serviced at any of its stores nationwide. Id. 111] 111] 111] -6- 014/1295.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. The Company’s Mutual Arbitration Agreement Since at least 2004, the Company has had an arbitration agreement in California (“the Arbitration Agreement,” or “the Agreement”) and arbitration has been the exclusive means for resolving employment-related disputes between the Company and its current or former employees. Romero Decl., |] 4, 10, 13, 14, Exhibits (“Exs.”) A, C. As a party to the Agreement, the Company is defined in the Agreement as Heartland Automotive Services, Inc. and all related entities and persons, including, without limitation, all officers, directors, and agents. Id., | 10, 13, 14, Exs. A, C. The Agreement, which was amended and updated in November 2009, specifies that arbitration is to be administered pursuant to the detailed procedures set forth in the Agreement, which follow the Model Employment Arbitration Rules of the American Arbitration Association. Romero Decl., {{ 4, 10, 13, 14, Exs. A, C. Under those rules, disputes are heard and determined by a neutral arbitrator, who may order all discovery—“by way of deposition, interrogatory, document production or otherwise” —necessary to “a full and fair exploration of the issues in dispute,” and must issue a written award. Declaration of Ernest W. (“Will”) Klatte, III (“Klatte Decl.”), { 5, Exhibit (“Ex.”) G. The Agreement expressly states that an employee may recover any damages that would otherwise have been available to him in court. Romero Decl., |] 10, 13, 14, Exs. A, C. The Agreement also requires the Company to pay all costs unique to the arbitration, with the exception of a one-time $200 initiation fee to be paid by the employee (in the event the employee initiates the arbitration). Id. The Agreement by its express terms is mutual and applies both to claims asserted by the employee and to claims asserted by the Company. Id., { 5, 10, 13, 14, Exs. A, C. The former category of claims specifically includes e claims arising under “[a]ny...state...laws...or statutes prohibiting employment discrimination (such as...sex...or any other legally protected status), harassment, and retaliation”; e “[r]etaliation claims for a legally protected activity and/or whistleblowing”; and e “[a]ny claim of wrongful discharge of any kind.” Li OL4/1298.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id., {q10, 13, 14, Exs. A, C. Meanwhile, the latter category includes, without limitation, the most common claim the Company asserts against its employees: theft or conversion of retail inventory and other company property. Id., q5. Lastly, the Agreement provides that any action to enforce arbitration is to be governed by the Federal Arbitration Act (“FAA”), if applicable, and otherwise by applicable state law. Id., qq 10, 13, 14, Exs. A, C. Gs Plaintiff Twice Signs and Acknowledges the Arbitration Agreement Plaintiff, who worked in the Company’s retail store in Coachella, California, agreed to the Arbitration Agreement on two separate occasions. Compl., { 10; Romero Decl., { 6. He first agreed to the Agreement on May 31, 2016 at the time of his new hire “on-boarding,” and then again on June 29, 2017, shortly after the Company transitioned from PeopleMatter to ADP for its employment-related records processing and retention. Romero Decl., 6. 1. Plaintiff Electronically Signs the Agreement upon Hire At the time that Plaintiff applied for employment with the Company, the Company maintained its job application through the “PeopleMatter” website. Romero Decl., 7. When an applicant applied for a position through PeopleMatter, they did so through an electronic device that is connected to the Internet. Id. The Company’s configuration of PeopleMatter required users to create a profile with their full name and also create a unique login name or e-mail address and a password before they could begin the application process. Id. Upon hire, employees go through an “electronic on-boarding” process, which provides computer-based information to newly hired employees on employment and benefits, including employment policies governing employment with the Company. Id., { 8. As part of “electronic on-boarding,” newly hired employees complete employment-related forms and agreements related to their employment with the Company by logging into PeopleMatter using their unique username and password, which was created at the time they submitted their electronic signature. Id. The “electronic on-boarding” process is typically completed at the outset of employment, by using one of the computer terminals located in the store or other location where the employee will be working. Id. Notwithstanding, because the Company provides employees with up to 30 days to 8- OLA 1255.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 review and acknowledge all company policies, employees are able to complete their “electronic on-boarding” procedure from any computer connected to the Internet. Id. Employees are provided with an explanation within the “electronic on-boarding” system about reviewing and acknowledging employment-related agreements, including the Arbitration Agreement. Id., 9. Employees are also informed by their manager—who typically facilitates the on-boarding—that the manager can answer any questions the employee may have about the process. Id. When presented with an employment-related agreement during ‘electronic on- boarding,” the employee must first open the full “.pdf” version of the policy. Then the employee electronically signs the agreement by clicking a button verifying that the employee understands and will abide by the agreement. Id. In addition to reviewing the full text of the agreement by clicking on the link, employees can request a hard copy of the agreement from Human Resources. ld. On May 31, 2016, at 11:02 p.m., as recorded in PeopleMatter, Plaintiff acknowledged as part of the “electronic on-boarding” process his agreement to abide by the Arbitration Agreement. Id., 110, Ex. A. The acknowledgment could not be signed without first accessing the full text of the Agreement. Id. The acknowledgment states: I understand and acknowledge that I have received, read, and understood the Company Mutual Arbitration policy. I also acknowledge and Plaintiff that as a condition of continued employment with Heartland Automotive Services, Inc., the company and I have voluntarily agreed to submit all claims or disputes (as outlined in the policy) between us to binding arbitration. We agree that arbitration pursuant to this Agreement shall be the sole and exclusive remedy for resolving any such claims or disputes. I understand that by agreeing to arbitrate, neither I nor Heartland Automotive Services, Inc. is giving up any substantive rights under either state or federal law. Rather, we are only agreeing to submit any claim or dispute to an arbitral forum, rather than a judicial (court) one. I understand that my acceptance of arbitration is a term and condition of employment with Heartland Automotive Services, Inc. This Agreement is not, and shall not be construed to create, any contract of employment, express or implied, nor does this Agreement in any way alter the “at-will” status of my employment. Id. 111 111 9- 014/1295.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff Electronically Signs the Agreement Again upon the Company Changing Platforms for Personnel Recordkeeping Plaintiff acknowledged and agreed to be bound by the Arbitration Agreement a second time when the Company transitioned from PeopleMatter to ADP on or about June 29, 2017. Romero Decl., { 11. At that time, ADP replaced PeopleMatter as the platform that the Company used to process and retain its employment-related documents. Id. In June or July of 2017, the Company circulated written instructions to all employees, vis- a-vis through its Store Managers, on how to register a new ADP Vantage HCM profile for all employment needs, including payroll and personnel documents. Romero Decl., { 12. As part of this registration process Plaintiff on June 29, 2017 again acknowledged his Arbitration Agreement. Id., q 13 and 14. The language of the acknowledgment—which, as before, could not be signed without first accessing the full text of the Agreement—was identical to that of Plaintiffs first acknowledgment. Id., {{ 10, 13, Exs. A, C. D. Plaintiff Files Suit and Refuses to Stipulate to Arbitration On October 18, 2019, Plaintiff filed this action. His complaint asserts thirteen claims: (1) nonpayment of minimum wage, (2) nonpayment of wages; (3) failure to provide rest breaks; (4) discrimination in violation of FEHA; (5) failure to reasonably accommodate; (6) failure to engage in an interactive process; (7) retaliation in violation of FEHA; (8) failure to prevent discrimination and retaliation; (9) whistleblower protection; (10) labor retaliation; (11) wrongful discharge in violation of public policy; (12) unfair business practices; and (13) intentional infliction of emotional distress. The Company asked Plaintiff to stipulate to submitting his claims to binding arbitration in accordance with the Agreement. Klatte Decl., { 3—4, Exs. E-F. Plaintiff has not agree to do so. Klatte Decl., 4. III. ARGUMENT A. The Court Must Compel Arbitration in the Face of a Valid Agreement by the Parties to Arbitrate Plaintiff entered into a valid agreement to arbitrate his employment-related disputes with the Company when, on May 31, 2016 and June 29, 2017, he electronically signed an -10- OLA 1255.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acknowledgment stating that he had “voluntarily agreed to submit all claims or disputes (as outlined in the policy) between [him and the Company] to binding arbitration” and that “arbitration pursuant to this Agreement shall be the sole and exclusive remedy for resolving any such claims or disputes.”! Plaintiff on those dates adopted that statement by his electronic signature and has since been bound by it. He cannot now seek relief in the judicial forum he knowingly and willingly gave up as part of his bargain to work for the Company. Federal and state law mandates the enforcement of written arbitration agreements not otherwise revocable under the law of contract. The arbitration agreement between Plaintiff and the Company is written, it calls for the parties to arbitrate, and it constitutes a binding contract. The court, therefore, must enforce the Agreement and order the parties to arbitration. 1: Under the Federal Arbitration Act and California Arbitration Act, Courts Have No Discretion to Deny a Proper Motion to Compel Arbitration The enforceability of the Agreement is governed to the extent applicable by the FAA, and otherwise by the California Arbitration Act (“CAA”). The FAA applies in both state and federal court, Southland Corp. v. Keating, 465 U.S. 1, 11-12 (1984), to “contract[s] evidencing a transaction involving commerce [among the several states].” 9 U.S.C. §§ 1-2. This language is broadly construed. As the United States Supreme Court and California courts have recognized, the FAA “embodies the Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Giuliano v. Inland Empire Pers., Inc., 149 Cal. App. 4th 1276, 1286 (2007) (quoting Perry v. Thomas, 482 U.S. 483, 490 (1987)).2 True to that intent, courts have approached the interstate commerce requirement with lenity: the cases show that for the FAA to apply, a contract need only indirectly affect interstate commerce, and it does not matter that the affected interstate entities or activities are immaterial to the case. See, e.g., Shepard v. Edward Mackay Enterprises, Inc., 148 !' Electronic execution of agreement documents is specifically authorized under the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001(a). The same is true under the California Uniform Electronic Transactions Act, Cal. Civ. Code § 1633.7(a)—(b). 2 Unless otherwise noted, internal citations and quotation marks are omitted. -11- OLA 1255.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. App. 4th 1092, 1100-01 (2007) (residential purchase contract held to involve interstate commerce where developer had used five different out-of-state building material suppliers, even though almost none of the out-of-state materials were at issue in the case). As set forth in the above statement of facts and in the concurrently filed declaration of Rosibel Romero, the Company is, by any definition, involved in interstate commerce within the meaning of the FAA. The Company transacts business throughout the United States, which include operating a national chain of retail stores that offer automotive products and services that travel or are transported across state lines, and it does so using interstate carriers and telecommunications. Romero Decl. 3. Hence the FAA applies to the Agreement. Under the FAA, a written agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. A party “aggrieved by the alleged...refusal of another to arbitrate” may move the court to compel arbitration. Id., § 4. Upon such motion, and if “satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue,” the court “shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” Id. This language in the FAA conveys a directive, not a choice. The FAA “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original). “The court’s role under the Act is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). If the answer to both questions is “yes,” the court must enforce the agreement and order the parties to arbitration. Here, a valid agreement to arbitrate exists. Its terms are clear, their meaning, plain: in the event of a dispute arising out of their employment relationship, the parties agree to waive their respective rights to a judicial forum and accept an arbitral forum instead. Plaintiff accepted those -12- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terms by twice electronically signing an acknowledgment of them. Thus, here, the answer to the Ninth Circuit’s first question from Chiron Corp. is “yes.” The Agreement also squarely covers Plaintiff’s causes of action—specifically, e claims arising under “[a]ny...state...laws...or statutes prohibiting employment discrimination (such as...disability...or any other legally protected status), harassment, and retaliation” and “[a]ny claim relating to the Americans with Disabilities Act, Family Medical Leave Act or any state disability or leave laws” (see Plaintiff’s fourth cause of action for discrimination, fifth cause of action for failure to reasonably accommodate, sixth cause of action for failure to engage in an interactive process; seventh cause of action for retaliation in violation of FEHA, eighth cause of action for failure to prevent discrimination and retaliation); e “[a]ny claim for personal, emotional, physical, or economic injury” and “[a]ny tort or statutory claims including, but not limited to...infliction of emotional distress” (see Plaintiff’s thirteenth cause of action for intentional infliction of emotional distress); eo “[a]ny...company policy, compensation, or benefits plan” (see Plaintiff’s first cause of action for nonpayment of minimum wage, second cause of action for nonpayment of wages, and third cause of action for failure to provide rest breaks) e “[r]etaliation claims for a legally protected activity and/or whistleblowing” (see Plaintiff’s seventh cause of action for retaliation in violation of FEHA, ninth cause of action for whistleblower protection, and tenth cause of action for labor retaliation); and e “[a]ny claim of wrongful discharge of any kind” (see Plaintiff’s eleventh cause of action for wrongful termination in violation of public policy). The answer, then, to the second Chiron question is also “yes.” Having met both these prongs, the Company is entitled under the FAA to an order compelling Plaintiff to arbitration. -13- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although academic, the result is the same under the CAA, which provides that “[a] written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” Cal. Civ. Proc. Code § 1281. If it determines an arbitration agreement exists, the court “shall order the petitioner and the respondent to arbitrate the controversy.” Id., § 1281.2 (emphasis added). Again, and as with the FAA, “[t]his language is mandatory, not precatory.” Coast Plaza Doctors Hosp. v. Blue Cross of California, 83 Cal. App. 4th 677, 687 (2000). Between the FAA and the CAA, the only permissible outcome of the Company’s motion is an order granting it. The Agreement is valid on its face, applicable to the parties’ dispute, and, ultimately, enforceable according to its terms. Zs Enforcing the Agreement Comports with Federal and State Policy Favoring Arbitration Enforcement of the Arbitration Agreement is likewise proper given the deference afforded such agreements under the declared public policy of both the United States and California. The Supreme Court has described section 2 of the FAA as evincing “a liberal federal policy favoring arbitration agreements,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67 (2010). The Supreme Court’s statements on the FAA, including in the landmark case AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), “place it beyond dispute that the FAA was designed to promote arbitration.” Id. at 345. “The overarching purpose of the FAA...is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.” Id. at 344. To that end, the FAA requires courts to honor parties’ expectations. Id. at 351. “Contracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.” Southland Corp., 465 U.S. at 7. For 3 The only exceptions are where “(a) [t]he right to compel arbitration has been waived by the petitioner; or (b) [g]rounds exist for the revocation of the agreement.” Cal. Civ. Proc. Code § 1281.2. _14- 014/1295.010 MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this reason, Congress, when it enacted the FAA, “withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” Id. at 10. In its place, Congress imposed on the courts a duty to “rigorously enforce agreements to arbitrate.” Dean Witter Reynolds, Inc., 470 U.S. at 221. “[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25. California’s stance on arbitration is no less deferential. The state has “a strong public policy in favor of arbitration.” Coast Plaza Doctors Hosp., 83 Cal. App. 4th at 686. California law “is designed to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing.” Vernon v. Drexel Burnham & Co., 52 Cal. App. 3d 706, 715 (1975). Arbitration has the benefits of “giving effect to the intention of the parties, easing court congestion, and providing a method more expeditious and less expensive for the resolution of disputes.” Id. Its legal standing is also a matter of principle. After all, an arbitration agreement is a contract, and “there is perhaps no higher public policy than to uphold and give effect to contracts validly entered into and legally permissible in subject matter.” Id. at 716. In Engalla v. Permanente Med. Group, Inc., 15 Cal. 4th 951 (1997), the California Supreme Court observed that “California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability.” Id. at 971. Similar to the FAA, it is “the general rule [in California] that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” Coast Plaza Doctors Hosp., 83 Cal. App. 4th at 686. “[A]ny doubts regarding the arbitrability of a dispute are resolved in favor of arbitration,” with “the court [to] indulge every intendment to give effect to an arbitration agreement.” Id. Against this pro-arbitration backdrop, no reasonable argument can be made that the parties’ arbitration agreement here does not merit enforcement. -15- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 The Arbitration Agreement Is Lawful and Enforceable under the Standard Set by Armendariz v. Found. Health Psychcare Services, Inc. In Armendariz v. Found. Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000), the California Supreme Court adopted a five-part test for determining whether a mandatory employment arbitration agreement that implicates unwaivable public rights like those of the FEHA is enforceable. Under the Armendariz test, 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.” Id. at 102. Plaintiff’s arbitration agreement with the Company meets all of these requirements—it provides for neutral arbitrators, Klatte, Decl. {5, Ex. C; provides for discovery by any method and to whatever extent required for “a full and fair exploration of the issues in dispute,” id.; requires that any award be in writing, id.; provides for all of the same relief recoverable in court, Romero Decl., |q 10, 13, 14, Exs. A, C; and limits Plaintiff’s arbitration-specific costs to a one-time $200 initiation fee, which is far less than the initial filing fee in court, id. IV. CONCLUSION The Company respectfully requests that the court grant their motion to compel arbitration. Dated: July 15, 2020 Klatte, Budensiek & Young-Agriesti, LLP py =O, Ernest W. “Will” Klatte, III Attorneys for Defendant TEAM CAR CARE, LLC f/k/a HEARTLAND AUTOMOTIVE SERVICES, INC. -16- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION AN nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. Iam over the age of 18 and not a party to the within action; my business address is Klatte, Budensiek & Young-Agriesti, LLP, 1111TA Quail Street, Newport Beach, California 92660. On July 15, 2020, I served the following described as DEFENDANT’S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO GARCIA TO BINDING ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action as follows: David Payab Matthew T. Hale PAYAB & ASSOCIATES 5850 Canoga Avenue, Suite 400 Woodland Hills, CA 91367 TEL: (818) 888-4546 FAX: (818) 888-4547 EMAIL: dpayab@payablaw.com mhale @payablaw.com Attorneys for Plaintiff GUILLERMO GARCIA, [X] BY EMAIL) A true copy of the foregoing document(s) were transmitted to the email address(es) set forth above. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTED on July 15, 2020, at Laguna Niguel, California. Machete ercrewns tr — Michelle Perciavalle -17- qm MOTION FOR AN ORDER COMPELLING PLAINTIFF GUILLERMO 200629 a07/15/20 GARCIA TO BINDING ARBITRATION Journal Technologies Court Portal Make a Reservation GUILLERMO GARCIA, AN INDIVIDUAL vs HEARTLAND AUTOMOTIVE SERVICES, INC, A CALIFORNIA CORPORATION, et al. Case Number: 19STCV28434 Case Type: Civil Unlimited Category: Wrongful Termination Date Filed: 2019-08-12 Location: Stanley Mosk Courthouse - Department 40 Reservation Case Name: GUILLERMO GARCIA, AN INDIVIDUAL vs HEARTLAND AUTOMOTIVE SERVICES, INC., A CALIFORNIA Case Number: CORPORATION, et al. 195STCV28434 Type: Status: Motion to Compel Arbitration RESERVED Filing Party: HEARTLAND AUTOMOTIVE SERVICES, INC, a Location: California Corporation (Defendant) Stanley Mosk Courthouse - Department 40 Date/Time: Number of Motions: 09/09/2020 9:30 AM 1 Reservation ID: Confirmation Code: 062429888498 CR-RDDPJFHATIVTEGFPA Fees Description Fee Qty Amount Motion to Compel Arbitration 60.00 1 60.00 Credit Card Percentage Fee (2.75%) 1.65 1 1.65 TOTAL $61.65 Payment Amount: Type: $61.65 AmericanExpress Account Number: Authorization: XXXX1051 249738 = Print Receipt = Reserve Another Hearing
