Guerra vs Ncrc Inc

Motion - Other

Cal. Super. - 4th Dist.January 24, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jason E. Baker, Esq. (SBN: 197666) jbaker@keeganbaker.com Holly M. Carnes, Esq. (SBN: 296340) hcarnes@keeganbaker.com KEEGAN & BAKER, LLP 6255 Lusk Boulevard, Suite 140 San Diego, California 92121 Telephone: (858) 558-9402/7 Facsimile: (858) 558-9401 Attorneys for Defendant, NCRC, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO - NORTH COUNTY REBECCA GUERRA, CASE NO. 37-2018-00003948-CU-WT-NC Plaintiff, DEFENDANT’S NOTICE OF HEARING ON MOTION TO COMPEL V. ARBITRATION AND TO STAY PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN NCRC, INC., a corporation; and DOES 1-100, SUPPORT THEREOF inclusive, Defendant. TO PLAINTIFF REBECCA GUERRA AND HER ATTORNEY(S) OF RECORD HEREIN: PLEASE TAKE NOTICE that on July 6, 2018, at 1:30 p.m., or as soon thereafter as the matter may be heard, in Department N-28, of the above-entitled Court, located at 325 S. Melrose Drive, Vista, CA 92081, Defendant NCRC, Inc. (“Defendant”), will bring forth for hearing its Motion to Compel Arbitration and to Stay Proceedings (the “Motion”) and will and hereby does request that the Court grant its Motion and issue an order compelling Plaintiff Rebecca Guerra (“Plaintiff”) to submit to arbitration all of the causes of action set forth in his Complaint. This Motion is brought on the grounds that Plaintiff signed a binding agreement to arbitrate, which requires her to arbitrate all claims related to or arising out of Plaintiff’s 1 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment with the Defendant. Thus, this Court should order Plaintiff to arbitrate all of her causes of action against the Defendant in accordance with the terms of the written agreement to arbitrate, pursuant to the California Arbitration Act, Cal. Code of Civil Procedure §§ 1280 et seq. (the “CAA”), and the Federal Arbitration Act, 9 U.S.C. §§ 1 ef seq. (“FAA”) and otherwise stay the action. This Motion is based on this Notice of Hearing on Motion, the Motion to Compel Arbitration and accompanying Declaration of David Marabella and Exhibits in Support of Motion (both filed concurrently herewith), the Memorandum of Points and Authorities in Support of the Motion, which is attached to this Notice, any Reply filed, all pleadings, records and files in this action, other documents that may be filed, and such other and further written or oral argument and such other evidence as may be presented at the hearing on this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Rebecca Guerra (“Plaintiff”) signed arbitration agreements with her employer, defendant NCRC, Inc. (“Defendant”) on July 10, 2015. The arbitration agreement is enforceable pursuant to the California Arbitration Act, Cal. Code of Civil Procedure §§ 1280 er seq. (the “CAA”), and the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”). The arbitration agreement also meets the requirements of Armendariz v. Foundation Health Psychcare Services, 24 Cal.4th 83 (2000). Nevertheless, in breach of her promise to arbitrate his claims, Plaintiff has filed the instant action alleging numerous claims arising from her employment. The Court must orderthis case to arbitration. Because Plaintiff has a binding obligation to arbitrate, the Defendant requests that the Court grant its Motion to Compel Arbitration and order Plaintiff to arbitrate all of her claims. II. STATEMENT OF FACTS A. The Parties The Defendant is a privately-owned California corporation with its principal place of business in Vista, California. The Defendantis a licensed general contractor, providing repair and maintenance services to retailers throughout the Western United States. Declaration of Dave 2 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Marabella, 92. Plaintiff was hired by Defendant in or about March 2014. Id., 94. Plaintiff was assigned to work in the Vista, California office. Id. Plaintiff was a customer service representative, responsible for answering calls from retail customers and scheduling repair work through Defendant’s remote network of service technicians. Id. Plaintiff was terminated on or about April 5, 2016, after being written up at least six (6) times for infractions such as (i) leaving the work facility to go to Target while on the clock, (ii) being outside talking on the phone while on the clock, (iii) shopping on the web while on the clock, (iv) refusing to answer calls from her supervisor, and otherwise, (v) chronic absenteeism. Indeed, Plaintiff was late for work at least 34 times in just the approximate three (3) month period before termination and sought time off more than 40 times in her short two-year employment, mostly to attend to personal affairs. Despite more than “just cause” for termination (when no cause is even required), Plaintiff asserts she was discriminated against, harassed and retaliated against on a medical basis totally unknown to Defendant and for which she was under no work restriction. B. The Arbitration Agreement and Procedure During Plaintiff's employment with Defendant, she signed two separate arbitration agreements. Id., JY 7-8. The most recent arbitration agreement she voluntarily signed (Id. § 9) on July 10, 2015 was entitled “Agreement Under State & Federal Arbitration Act to Submit Disputes to Binding Arbitration and Class Action Waiver” (the “Arbitration Agreement”). Id. at 9 8. In the Arbitration Agreement, Plaintiff expressly agreed: “to arbitrate any and all disputes or claims between the parties (the “Agreement”) arising out of or related to the employment and/or other business relationship between the parties (hereafter the “Claims”).” The Arbitration Agreement provided for arbitration governed by the then-current Employment Arbitration Rules of JAMS and will be administered by JAMS. The Arbitration Agreement was binding both in name and substance by providing that: “[a]ll issues are for the arbitrator to decide, including the scope ofthis Agreement” and “[t]his [Arbitration] Agreement shall be binding upon and inure to the benefit of the parties hereto. . .” 3 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Arbitration Agreement covers the claims plead by Plaintiff because it is broad in scope. Indeed, the Arbitration Agreement provides: “The definition of Claims and the scope of this Agreement are intended to be as broad as possible, and are further intended to be interpreted to support arbitration of any dispute, claim, controversy, cause of action, complaint, or grievance between the parties” including “all disputes or claims between the parties . . . arising out of or related to the employment and/or other business relationship.” C. Plaintiffs Complaint Despite her binding Arbitration Agreement, on January 24, 2018, Plaintiff filed the instant action against the Defendant. See, Complaint. In her Complaint, Plaintiff asserts ten causes of action alleging (1) Wrongful Termination (Gov. Code § 12920); (2) Retaliation (Gov. Code § 12940(h)); (3) Employment Discrimination Based on Disability (Gov. Code § 12940); (4) Hostile Work Environment and Harassment in the Workplace; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; (7) Failure to Accommodate Disability (Gov. Code § 12940); (8) Employment Discrimination Based Upon Race and Nationality; (9) Negligent Supervision and Retention; and (10) Failure to Engage in the Interactive Process. See, Complaint, 9 25-92. Plaintiff’s claims are substantively meritless and, more importantly for present purposes, they have been filed in the wrong place. All claims are within the scope of the Arbitration Agreement and must be submitted to “final and binding” arbitration with JAMS. III. THE COURT SHOULD ENFORCE THE ARBITRATION AGREEMENT A. Under the FAA and the CAA, Private Arbitration Agreements Must Be Enforced The Arbitration Agreement is governed by the FAA and the CAA, and that a Motion to Compel Arbitration may be brought under either law, or both. 1. The FAA The FAA establishes a strong federal policy favoring arbitration. Moses H. Com Memorial FAA Hospital v. Mercury Construction Corp. (1983) 460 U.S. 1; Kuehner v. Dickinson & Co., (9™ Cir. 1996) 84 F.3d 316, 319 (the FAA “created a rule of contract construction favoring arbitration”). Indeed, the primary purpose of the FAA is to “ensure that private agreements to 4 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arbitrate are enforced according to their terms.” Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., (2010) 559 U.S. 662, 682; AT & T Mobility V. Concepcion (2011) 563 U.S. 333, 344 (“the overarching purpose of the FAA .... is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings”); Accord Momot v. Mastro (9th Cir. 2011) 652 F.3d 982, 986. In order to effectuate the purposes of the FAA, the U.S. Supreme Court has mandated that courts must rigorously enforce arbitration agreements. Dean Witter Reynolds, Inc. v. Byrd (1985) 470 U.S. 213, 218 (“the [FAA] leaves no place for the exercise of discretion... 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.”); 9 U.S.C. § 4 (the Court “shall make an order summarily directing the parties to proceed with arbitration in accordance with the terms [of the arbitration agreement]”) (emphasis added). 2. The CAA As stated by the California Supreme Court, “California law, like [federal law], reflects a strong policy favoring arbitration agreements.” Wagner Constr. Co. v. Pacific Mech. Corp. (2007) 41 Cal.4th 19, 31 (internal quotations omitted). See also EFUND Capital Partners v. Pless, 150 Cal.App.4th 1311, 1319-20 (2007); Cione v. Foresters Equity Servs. Inc. (1997) 58 Cal.App.4th 625 (“a heavy presumption weighs the scales in favor of arbitrability”); Vianna v. Doctors’ Mgmt. Co. (1994) 27 Cal. App.4th 1186, 1189; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 96. California courts, like federal courts, are required to grant Motions to compel arbitration where, as here, there is a valid arbitration agreement. Cal. Code Civ. Proc. § 1281.2 (“the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists”) (emphasis added). In order to advance the purpose of § 1281.2, “courts will indulge every intendment to give effect to [arbitration] proceedings.” Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1109; Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1468. As a result, arbitration clauses are presumed to be valid and any doubts are to be resolved in favor of 5 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the party moving to compel arbitration. See, e.g., Bigler v. Harker School (2013) 213 Cal.App.4th 727, 738 (“[i]n light of California’s strong public policy in favor of arbitration... ‘[d]oubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration’) (internal citations omitted); Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282 (same); Vianna, 27 Cal.App.4th at 1189 (same); Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1407; Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell (1999) 76 Cal.App.4th 227, 230. The party opposing arbitration has the burden of showing that an arbitration clause is invalid or otherwise unenforceable. Green Tree Fin. Corp.-Ala. v. Randolph (2000) 531 U.S. 79, 91-2; Mission Viejo Emergency Med. Associates v. Beta Healthcare Grp. (2011) 197 Cal.App.4th 1146, 1158; Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686-87. As demonstrated below, the Court must conclude that (1) an enforceable written arbitration agreement exists; (2) the agreement covers all of Plaintiff’s claims; and (3) Plaintiff must submit her claims to arbitration. B. An Enforceable Arbitration Agreement Exists Here, as detailed above, Plaintiff expressly and voluntarily agreed to be bound by the terms of the Arbitration Agreement. “Arbitration agreements are valid, irrevocable, and enforceable” and “may only be invalidated for the same reasons as other contracts.” Armendariz, 24 Cal. 4M at 98; Cal. Civ. Proc. Code § 1281. Here, it is beyond dispute that there is an enforceable agreement to arbitrate the controversy Thus, as in the cases cited above, the Court should conclude that a mutually binding arbitration contract was formed between Plaintiff and the Defendant that continues in effectto this date. 1. Plaintiff’s Claims Are Arbitrable In the Arbitration Agreement, Plaintiff expressly agreed: “to arbitrate any and all disputes or claims between the parties . . . arising out of or related to the employment and/or other business relationship between the parties . . 2 6 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Arbitration Agreement covers the claims plead because it is broad in scope. The Arbitration Procedure states that “The definition of Claims and the scope of this Agreement are intended to be as broad as possible and are further intended to be interpreted to support arbitration of any dispute, claim, controversy, cause of action, complaint, or grievance between the parties,” including “all disputes or claims between the parties . . . arising out of or related to the employment and/or other business relationship.” As noted above, Plaintiff asserts ten claims that arise out of, or are related to, her former employment relationship with the Defendant. These claims fall squarely within the broad definition of arbitrable claims in the Arbitration Agreement because they “arise out of or are related to” a “employment and/or other business relationship between the parties.” As such, all of Plaintiff’s claims clearly fall within the scope of the Arbitration Agreement. 2. The Arbitration Procedures Satisfy the Requirements Set Forth in Armendariz Plaintiff may argue that the Arbitration Agreement is not enforceable under California law. In Armendariz, our Supreme Court set forth five minimum requirements that must be met in the employer-employee context to ensure that a mandatory arbitration agreement does not curtail an employee's public rights derived from statutory and common law. Fitz v. NCR Corporation, (2004) 118 Cal.App.4th at p. 702, 712-13; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th at pp. 102, 110-111. “Arbitration agreements in the employer-employee context must provide for: (1) neutral arbitrators, (2) more than minimal discovery, (3) a written award, (4) all types of relief that would otherwise be available in court, and (5) no additional costs for the employee beyond what the employee would incur if he or she were bringing the claim in court.” Fitz, supra, 118 Cal.App.4th at pp. 712-713. a. Neutral Arbitrators. JAMS Rule 7 provides that the Arbitration shall be conducted by one neutral Arbitrator, unless all Parties agree otherwise. Where the Parties have agreed that each Party is to name one Arbitrator, the Arbitrators so named shall be neutral and independent of the appointing Party, unless the Parties have agreed that they shall be non-neutral. Here, the Arbitration Agreement does not define the number of arbitrators or allow for non- neutral arbitrators, and thus, JAMS Rule 7 would apply to require a single neutral arbitrator. 7 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Adequate discovery. JAMS Rule 17 provides a series of rules for the Exchange of Information, which includes exchange of all relevant, nonprivileged documents, including, without limitation, copies of all documents in their possession or control on which they rely in support of their positions, names of individuals whom they may call as witnesses at the Arbitration Hearing and names of all experts who may be called to testify at the Arbitration Hearing. Rule 17 also allows each side one deposition. However, in the event this aforementioned discovery is inadequate, Rule 17 allows the Arbitrator to modify these obligations. c. Written arbitration award. JAMS Rule 24(h) requires for a written award. d. Types of Relief. JAMS Rule 24(c) allows the arbitrator to grant any remedy or relief that is just and equitable and within the scope of the Parties’ agreement, including, but not limited to, specific performance of a contract or any other equitable or legal remedy. The Arbitration Agreement in no way limits the type of relief requested. But for practical purposes, Plaintiff only seeks monetary relief and not reinstatement or other equitable relief. e. Arbitration costs. JAMS Rule 24(f) allows the Arbitrator to allocate Arbitration fees and Arbitrator compensation and expenses, unless such an allocation is expressly prohibited by the Parties” Agreement or by applicable law. California authority is clear that a prevailing Defendant in a FEHA action is entitled to recover attorneys’ fees and costs (such as expert witness fees) if it can establish that Plaintiffs claims were “frivolous, unreasonable, or groundless.” See Gov. Code § 12965(b). Indeed, where plaintiff discovers the weakness of his or her claims after filing suit (e.g., during discovery), continuation of the suit may be deemed “frivolous, unreasonable or groundless.” In such cases, a FEHA fee award to prevailing defendants is properfrom the time plaintiff was aware of facts demonstrating the absence of discrimination. See, Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, ! The Award shall consist of a written statement signed by the Arbitrator regarding the disposition of each claim and the relief, if any, as to each claim. The Award shall also contain a concise written statement of the reasons for the Award,stating the essential findings and conclusions on which the Award is based. The Parties may agree to any other form of Award, unless the Arbitration is based on an arbitration agreementthat is required as a condition of employment. 8 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2001) 91 Cal.App.4™ 859, 873, citing Moss v. Associated Press (CD CA 1996) 956 F.Supp. 891, 894 (applying Calif. law); EEOC v. United Parcel Service, Inc. (9th Cir. 2005) 424 F3d 1060, 1078 (applying Calif. law). IV. CONCLUSION Defendant respectfully requests that this Court grant its Motion to Compel Arbitration and order Plaintiff to arbitrate the all claims raised in the Complaint in accordance with the Arbitration Agreement. KEEGAN & BAKER, LLP Dated: April 26, 2018 /s/ Holly M. Carnes Jason Baker, Esq. Holly M. Carnes, Esq. Attorneys for Defendant, NCRC, INC. 9 Defendant’s Notice of Motion of Hearing on Motion to Compel Arbitration and Stay Proceedings; Ps&As