Jasso v. Money Mart Express, Inc.

• Decision Date: 13 April 2012
• Docket Number: Case No. 11–CV–5500 YGR.
• Citation: 879 F.Supp.2d 1038
• Parties: Janelle JASSO, individually and on behalf others similarly situated, Plaintiff, v. MONEY MART EXPRESS, INC., Dollar Financial Group, Inc., Defendants.
• Court: U.S. District Court — Eastern District of California

879 F.Supp.2d 1038

Janelle JASSO, individually and on behalf others similarly situated, Plaintiff,

v.MONEY MART EXPRESS, INC., Dollar Financial Group, Inc., Defendants.

Case No. 11–CV–5500 YGR.

United States District Court, N.D. California.

April 13, 2012.

Alexander Russell Wheeler, Douglas Han, R. Rex Parris, Kitty Kit Yee Szeto, R. Rex Parris Law Firm, Lancaster, CA, Devin Rauchwerger, Maria Felicia Nickerson, Lawyers for Justice, PC, Edwin Aiwazian, Jill Jessica Parker, The Aiwazian Law Firm, Glendale, CA, for Plaintiff.

Benjamin Kneeland Riley, Brian Patrick Villarreal, Charles Griffith Towle, Bartko, Zankel, Tarrant & Miller, San Francisco, CA, Simon Richard Goodfellow, Benjamin Kneeland Riley, Brian Patrick Villarreal, Charles Griffith Towle, Simon Richard Goodfellow, Bartko Zankel Tarrant & Miller, San Francisco, CA, for Defendant.

Order Granting Motion To Compel Arbitration And Stay Civil Proceedings

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff Janelle Jasso brings the instant action on behalf of herself and a putative class of similarly situated California employees for violation of California Labor Code sections governing, inter alia, overtime compensation, meal and rest breaks, reimbursement for employment-related expenses, and penalties based upon failure to pay wages timely. Defendants Money Mart Express, Inc. and Dollar Financial Group, Inc. (collectively, “Dollar”) removed the action from the San Francisco Superior Court on November 16, 2011, based upon the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(2)(A) and diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). The parties are presently before the Court on Defendants' Motion to Compel Arbitration and to Stay the Civil Action Pending Arbitration.

Having carefully considered the papers submitted in support of and in opposition to the motion, the supplemental briefing submitted at the request of the Court, the arguments of counsel, and the pleadings in this action, the Court hereby GRANTS the motion for the reasons stated herein.

BACKGROUND

Plaintiff filed her class action complaint in the Superior Court of the State of California for the County of San Francisco on October 11, 2011, alleging Labor Code violations, and other violations under California law. On November 16, 2011, Defendants filed their Notice of Removal. Defendants bring this motion to compel arbitration and stay proceedings in this court.

Plaintiff was employed by a Dollar subsidiary from May 14, 2008 to December 1, 2009, initially as a manager in training and then as a store manager. On May 14, 2008, she signed two documents relevant to this motion: (1) an Employee Acknowledgement acknowledging receipt of the Employee Handbook (“Employee Acknowledgement”);and (2) a document entitled “Mutual Agreement to Arbitrate Claims.” (“Arbitration Agreement”). (Declaration of Jason Fisher, filed November 17, 2011, Exh. 1–3.) The Employee Acknowledgement provides, in part, that the person signing has “carefully read this handbook, including the DISPUTE RESOLUTION PROGRAM and provisions relating to arbitration before signing below, and I agree that my employment is at will and will be governed by the terms of this handbook.” (Fisher Dec., Exh. 2.)

Pages 26 to 33 of the Handbook describe the Defendants' employee dispute resolution policy, including its “open door policy,” an informal conference for resolving problems, and arbitration as the third step if “a dispute remains unresolved and involves a legally protected right.” (Fisher Dec., Exh. 1 at pg. 30.) A two-page description of the arbitration process follows, including a bolded paragraph stating:

Effective July 1, 1995, Dollar Financial Group, Inc. and its subsidiaries and affiliated entities have adopted this program and policy as its exclusive means of resolving workplace disputes for legally protected rights. That means that any employee who accepts or continues a job at Dollar Financial Group, Inc. or any of its subsidiaries or affiliated entities after that date will agree to resolve all legal claims against his or her employer through this process instead of through the court system. Any arbitration will be under the Employment Dispute Resolution Rules of the AAA, a copy of which is available upon request. In connection with any such arbitration, the Company will pay all costs unique to arbitration (other than an amount equivalent to the first filing fee that would have been applicable), including administrative fees of the AAA and arbitrator compensation.

( Id. at page 32.)

The Arbitration Agreement states that:

[t]he Company and I mutually consent to the resolution by arbitration of all claims or controversies (“claims”), past, present or future, whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against any of the Company, its officers, directors, employees, or agents in their capacity as such or otherwise, the Company's parent, subsidiary and affiliated entities.....”

(Fisher Dec Exh. 3.) The Arbitration Agreement further includes a class action waiver provision stating as follows:

All disputes, including any [sic] all Claims asserted by me ... as a representative and/or member of a class of persons, and/or in any other representative capacity, against the Company and/or related third parties (“representative claims”) shall be resolved only on an individual basis with me. Therefore, the arbitrator shall not conduct class arbitration; that is, the arbitrator shall not allow me to serve as a representative, as a private attorney general or in any other representative capacity for others in the arbitration.

(Fisher Dec., Exh. 3 at 1–2.)

STANDARD FOR MOTION TO COMPEL ARBITRATION

The FAA requires a district court to stay judicial proceedings and compel arbitration of claims covered by a written and enforceable arbitration agreement. 9 U.S.C. § 3. A party may bring a motion in the district court to compel arbitration. 9 U.S.C. § 4. In ruling on the motion, the court's role is limited to determining whether: (1) there is an agreement betweenthe parties to arbitrate; (2) the claims at issue fall within the scope of the agreement; and (3) the agreement is valid and enforceable. Lifescan, Inc. v. Premier Diabetic Services, Inc., 363 F.3d 1010, 1012 (9th Cir.2004). If those questions are answered in the affirmative, the court must enforce the agreement.

Section 2 of the FAA provides that arbitration clauses may be invalidated based “upon the same grounds as exist in law or in equity for the revocation of any contract, such as fraud, duress or unconscionability.” 9 U.S.C. § 2, Rent–A–Center, West, Inc. v. Jackson, 561 U.S. ––––, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). The court applies ordinary state-law principles in determining whether an agreement is revocable. Davis v. O'Melveny & Myers, 485 F.3d 1066, 1072 (9th Cir.2007). However, the FAA preempts any state-law defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. AT & T Mobility LLC v. Concepcion, ––– U.S. ––––, 131 S.Ct. 1740, 1745–47, 179 L.Ed.2d 742 (2011)( Concepcion ). Because of the strong policy favoring arbitration, doubts are to be resolved in favor of the party moving to compel arbitration. Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).

DISCUSSION

Here, there is no question as to whether there is an arbitration agreement between the parties or whether the claims at issue are covered by the terms of the Arbitration Agreement. Instead the parties disagree as to whether the terms of the agreement, particularly the class action waiver term, are enforceable.

Defendant argues that its Arbitration Agreement is enforceable because it is comprehensive, mutual, and fair, and provides for a neutral arbitrator, no limitation on remedies or discovery, a written award, an opportunity for review of the decision, and minimal costs to the employee to arbitrate. Defendant argues that the Supreme Court's recent decision in Concepcion overruled prior California Supreme Court authority, the “Discover Bank rule,” under which California courts held arbitration agreements to be unconscionable and unenforceable simply because they contained class action waivers. Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005). Therefore, the existence of such a waiver in the arbitration agreement here is no impediment to its enforcement.

Plaintiff argues that the agreement is both procedurally and substantively unconscionable and is therefore invalid and unenforceable. Plaintiff contends that the agreement was buried in a pile of employment forms, is one-sided and adhesive, and lacks mutuality in the obligation to arbitrate claims. Moreover, Plaintiff argues that the agreement contains an unenforceable class arbitration waiver which violates California public policy, particularly because it would impermissibly interfere with employees' ability to vindicate their non-waivable, statutory rights to receive minimum wage and overtime compensation as provided in the California Labor Code. And finally, because California law holds that an arbitrator cannot properly award and monitor injunctive relief, enforcement of the Arbitration Agreement would deprive Plaintiff of a remedy she seeks on behalf of the general public.

A. Does the Class Action/Arbitration Waiver Render the Arbitration Agreement Unconscionable?

1. Concepcion

Prior to the Supreme Court's decision in Concepcion last year, the controlling Californiaauthority concerning class action waivers was Discover Bank. There, the California Supreme Court applied the FAA as well as principles of unconscionability to determine whether to enforce an arbitration agreement containing a class action waiver. Discover Bank held that:

when the waiver is found in a consumer contract of...