Flores v. Nature's Best Distribution, LLC

• Citation: 7 Cal.App.5th 1,212 Cal.Rptr.3d 284
• Decision Date: 02 December 2016
• Docket Number: G052410
• Court: California Court of Appeals
• Parties: Julie FLORES, Plaintiff and Respondent, v. NATURE'S BEST DISTRIBUTION, LLC, et al., Defendants and Appellants.

7 Cal.App.5th 1

212 Cal.Rptr.3d 284

Julie FLORES, Plaintiff and Respondent,

v.NATURE'S BEST DISTRIBUTION, LLC, et al., Defendants and Appellants.

G052410

Court of Appeal, Fourth District, Division 3, California.

Filed December 2, 2016

Barnes & Thornburg, Scott J. Witlin, L. Rachel Lerman and Rachel T. Segal, Los Angeles, for Defendants and Appellants.

Aegis Law Firm, Kashif A. Haque, Irvine, and Cindy Pham for Plaintiff and Respondent.

OPINION

FYBEL, J.

INTRODUCTION

Plaintiff Julie Flores filed a lawsuit against Nature's Best Distribution, LLC, Nature's Best, KeHe Distributors, Inc., and KeHe Distributors, LLC (collectively referred to as defendants), alleging several claims under the California Fair Employment and Housing Act (Gov. Code, § 12940 et seq. ). Defendants filed a petition to compel arbitration based on evidence that plaintiff signed an agreement for alternative dispute resolution (the Agreement). The trial court denied the petition. Defendants contend the trial court erroneously concluded defendants failed to prove plaintiff agreed to arbitrate her claims and that the arbitration provision contained in the Agreement was unenforceable because it is unconscionable.

We affirm. Defendants failed to prove plaintiff agreed to submit her claims to final and binding arbitration.

BACKGROUND

I. THE COMPLAINT

In November 2014, plaintiff filed a complaint against defendants, alleging claims for disability discrimination (Gov. Code, § 12940, subd. (a) ), failure to engage in the interactive process (id. , § 12940, subd. (n) ), failure to accommodate disability (id. , § 12940, subd. (m) ), retaliation (id. , § 12945.2), failure to prevent discrimination or retaliation (id. , § 12900 et seq.), and wrongful termination in violation of public policy. The complaint alleged that in July 2001, plaintiff began working for defendants¹ in the shipping/receiving department. In February or March 2014, plaintiff injured her back but continued to work until May 2014, when her back injury got worse and she was placed on medical leave for "disabling lumbar radiculopathy

and spinal stenosis."

The complaint further alleged that plaintiff's medical leave was extended through August 15, 2014. When plaintiff returned to the doctor, however, she was not cleared of all restrictions and was placed on further leave until August 31, 2014, on which date she would be cleared to perform modified duties from September 1 to 19, 2014. Plaintiff did not receive a doctor's note, memorializing the need to further extend her leave, until August 18, 2014, at which time she faxed it to defendants at a fax number, which she previously had used, and received a confirmation that the fax was successfully sent. Defendants denied receiving a fax. Plaintiff attempted to deliver the doctor's note in person, but learned that on August 21, 2014, her employment had been terminated for failing to return from medical leave.

II.

DEFENDANTS FILE A PETITION TO COMPEL ARBITRATION .

Defendants filed a petition to compel arbitration of plaintiff's claims and to stay judicial proceedings (the petition) on the ground that plaintiff had signed the Agreement. Defendants submitted the declaration of Jamie Bonin, the senior director of human resources "at Natures Best and KeHe Distributors," who began her employment with defendants in July 2007. Bonin's declaration stated that the Agreement, "signed by [plaintiff] on September 9, 2001, is part and parcel to our new employee packet that is given to and signed by all new hires. Attached hereto and incorporated herein by reference, please find a copy of the Agreement for Alternat[iv]e Dispute Resolution signed by [plaintiff] as Exhibit ‘A’." (Boldface omitted.) The Agreement stated as follows:

"In further consideration of the mutual benefits of the employment relationship between employee and Company, employee and Company agree to submit all legal, equitable and administrative disputes to the American Arbitration Association for mediation and binding arbitration. This applies to all employee disputes, except those actually covered by the grievance and arbitration procedure in the Agreement between Nature's Best and Teamster's Local 692, hereinafter referred to as the ‘Collective Bargaining Agreement.’ In other words, all disputes actually covered by the Collective Bargaining Agreement shall be determined according to the terms and conditions of said Agreement, exclusively. All disputes not within the scope of the Collective Bargaining Agreement are covered by this agreement. Both parties waive the right to a jury trial, waive the right to a court trial and waive the right to appeal. Arbitration shall occur in the County of Orange, State of California, and shall be in accordance with the rules of the American Arbitration Association. Before any party may initiate arbitration, the following steps must first occur in the following order:

"1. Unless the dispute involves a termination of employment, you must first meet and confer with your Immediate Supervisor. If not resolved with your immediate Supervisor, meet and confer with the next level supervisor, followed by a joint meeting.

"2. If employment termination is involved or if all other disputes are not resolved at the meet and confer sessions, the disputed issues will be referred to independent mediation in the County of Orange, State of California at either the American Arbitration Association or Judicial Arbitration and Mediation Services, Inc. (JAMS), in accordance with their mediator selection process and rules, for a maximum of four hours, and the Company will pay for the mediation. The confidentiality of the communications during said mediation shall be protected by the Evidence Code, Section 1151.5[.]

"3. If all issues are not resolved in mediation, either party shall have the right to elect binding arbitration at the American Arbitration Association in accordance with the rules of the American Arbitration Association. The costs shall be paid in advance and shall be shared equally by employee and Company."

The Agreement purported to contain plaintiff's signature, but does not have a signature on the line under "Authorized Employer Signature."

III. PLAINTIFFS'S OPPOSITION TO THE PETITION

Plaintiff filed a written opposition to the petition, in which she raised several challenges to the Agreement. She argued defendants failed to "reasonably authenticate any alleged agreement or meet basic evidentiary standards to establish the existence of or terms of an alleged agreement." She submitted her declaration in support of her opposition, stating she did not remember seeing or signing the Agreement. She argued the Agreement did not identify which set of the American Arbitration Association (AAA) rules would apply to binding arbitration.² Plaintiff also stated that the Agreement referred to a collective bargaining agreement with Teamsters Local 692, but she did not recall Teamsters Local 692 being present at her workplace. She stated that at the time her employment was terminated, Teamsters Local 848 was present.

Plaintiff argued the Agreement was unconscionable because, inter alia, it was offered on a "take-it-or-leave-it condition of employment without any opportunity to negotiate its terms," and "it affirmatively requires Plaintiff to pay unlawful fees and denies Plaintiff any appeal rights." She also argued defendants did not comply with the Agreement because they did not seek mediation before petitioning to compel arbitration.

IV. DEFENDANTS' NOTICE OF ERRATA AND REPLY BRIEF IN SUPPORT OF THE PETITION

After plaintiff filed her opposition, defendants filed a notice of errata stating that with regard to the petition, defendants inadvertently failed "to add Exhibit ‘A’, American Arbitration Association, Labor Arbitration Rules." Attached to the notice of errata is a set of the AAA's Labor Arbitration Rules, effective July 1, 2013.

Defendants also filed a reply brief, stating: "The threshold question in this matter is whether there is an agreement to arbitrate. Here, there are two clearly defined agreements to arbitrate: (1) the stand alone agreement identified as Agreement for Alternate Dispute Resolution (‘AADR’); and (2) Article 28, in the Collective Bargaining Agreement (‘CBA’). Plaintiff, a dues paying member of Teamsters Local 848, and prior to that, Teamsters Local 692 ... was subject to the CBA at all times herein mentioned." The reply brief stated that a copy of "the CBA" was attached to a second declaration by Bonin, which was filed concurrently with the reply brief. The reply brief requested that the court sever the provision of the Agreement, which stated the costs of arbitration would be shared equally between the parties.

Bonin's declaration, filed in support of defendants' reply brief, authenticated an attached copy of "[t]he CBA [that was] in place at the date of Plaintiff's signing the ... Agreement." That collective bargaining agreement (the Local 692 CBA) contained a provision entitled "Article 27—Grievance & Arbitration Procedure" which stated in part: "Grievances are defined as an alleged violation by the COMPANY or the UNION of a specific provision of this AGREEMENT." The Local 692 CBA provided that any grievance not satisfactorily settled through steps 1 and 2 of a grievance procedure would be referred to final and binding arbitration, conducted according to specified procedures.³ In her declaration, Bonin stated that "[e]ach of the employees of Natures Best receives a copy of the CBA, including the Plaintiff herein." Bonin also stated that plaintiff was part of Teamsters Local 692 in 2001, and that in June 2003, Teamsters Local 692 merged with Teamsters Local 848. She further stated, "in order for a Union Employee like Plaintiff to work at Nature's Best, they must join a union."

Bonin also stated in her declaration that plaintiff's signature on the Agreement looked like her signature on other documents. Bonin stated the Agreement was kept in the ordinary course...