DENIED. Defendant Freitas,
Angell & Weinberg, LLP’s Motion to Strike the Amended Complaint is Denied. Said Defendant to file and serve its Answer within
20 days of this Order.
In this case, Plaintiff Ryker eDiscovery, LLC sues
for breach of contract to collect approximately $60,000 in unpaid fees for
database hosting services allegedly rendered to the Defendant law firm Freitas, Angell.
Defendant moves to strike out the Amended
Complaint on grounds that Plaintiff could not lawfully file its original
Complaint in pro per because it is a corporation that had to be represented
by Counsel at the time, and therefore the Amended Complaint now on file by
outside litigation Counsel does not relate back to the initial arguably
defective Complaint. Defendant relies on Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App.4th
409,415, in support of this proposition.
· However, Defendant has not established
that the filing of the Amended Complaint failed to conform to the law. Although the original complaint was not
filed by an attorney, Plaintiff has since retained counsel who filed an
amended complaint. Defendant cites
no authority indicating that the filing of the amended pleadings was
improper. Davaloo, on which it relies,
involved application of the relation-back doctrine where the initial
complaint was so devoid of factual allegations that it failed to meet the
minimal pleading requirement of CCP §425.10 and was the functional
equivalent of no complaint at all. Id,
at 417. The appeals court did not
address a situation substantially similar to the circumstances here.
· In contrast, CLD Construction,Inc.
v. City of San Ramon (2004) 120 Cal. App.4th 1141, 1150 –
1152, held that the rule requiring representation does
not deprive a corporation of its capacity to be a party to a lawsuit and
that a corporation should not be foreclosed from proceeding with its legal
right to sue because of a defective complaint that can easily be cured without
prejudice to either the trial court or the opposing party. Here, defendant does not contend that the
original complaint was barred by the statute of limitations, nor does it
articulate any undue prejudice resulting from the fact that plaintiff was
unrepresented at the time the action was commenced. In fact, counsel was retained and filed
the amended pleadings before defendant made its first
appearance by filing the instant motion.
If the tentative ruling is uncontested, it shall become the
order of the court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule
3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or
any other notice is required, as the tentative ruling affords sufficient
notice to the parties.
COUNSEL TO PERSONALLY APPEAR. NO TELEPHONIC APPEARANCES. NO “COVERING”
COUNSEL. COUNSEL TO BE PREPARED TO ADDRESS THE ISSUES RAISED
This is a personal
injury action arising from an accident at the COSTCO store in Foster City
on July 15, 2015. Plaintiffs Marietta and Moises
(her husband) Canda were shopping there when
Defendant Olga Hedden, who was driving a store
scooter provided by COSTCO, crashed into a shopping cart that then,
allegedly, in turn hit Marietta Canda and knocked
her down on the floor. She suffered a broken hip that required surgery. Mr.
Canda claims emotional distress from witnessing
By this Motion, COSTCO
seeks to be dismissed from the case under Calif. Code of Civil Proc.,
§877.6 by virtue of a separate settlement for a $2687.71 cost waiver that
COSTCO asserts is in good faith. COSTCO’s
liability, as claimed by Plaintiffs in their Complaint, is alleged
negligence in the maintenance and repair of the scooter on the basis of
purported inoperable brakes.
The Court has these
Are there any other
special damages claimed, such as wage loss for lost time at work or other
Assuming a joint and
several liability by both defendants, what is the
reasonable claims evaluation as to overall dollar value of the case? It
appears that the medical specials unreimbursed by health insurance are in
the range of $76,000. Wouldn’t that dictate an overall possible adverse
verdict range in the area of up to $150,000 or more?
If COSTCO’s comparative
fault as to the alleged negligent maintenance & repair of the scooter
were proved, what is the percentage comparative fault as between the two
defendants for claim evaluation purposes?
What exactly is the
Deposition testimony of Defendant Hedden that
supports the conclusion that COSTCO has no liability exposure here?
Negligent maintenance and repair is arguably beyond Plaintiffs’ knowledge;
the dangerous placement of fruit racks, or not, is arguably beyond
Plaintiffs’ direct knowledge?
Isn’t Plaintiff entitled
to the depositions of COSTCO employees?
Why were these depositions not taken earlier? Isn’t this proposed
If COSTCO’s position is
that their Motion should be considered now, without further discovery, are
they willing to disclose and produce to Plaintiffs’ Counsel and the Court
copies of any witness statements taken from COSCO employees on the
maintenance/repair and fruit rack issues?
DENIED. Defendant Ultra Clean Technology’s
Motion to Compel Arbitration and Stay Action is Denied.
This is an action for Wrongful
Termination brought by Plaintiff Steve Gill against his former employer
Ultra Clean Technology. The basic gist of the action here is misconduct by
Mr. Gill’s immediate supervisor a Senior Vice-President named Mark Bingham,
allegedly the driving force in the company’s decision to terminate Mr.
For the purposes of considering this
Motion, the Court will judicially notice and accept all of the Complaint’s
fact allegations in paragraphs 10 to 21, inclusive, for the fact that they
are statements made in support of the claims made by the Complaint. In that
regard, the Complaint sets forth certain extreme and outrageous conduct
that is singularly unusual in a wrongful termination of employment case.
Namely, claims made for false imprisonment, assault, and battery, and
The dispositive question before the Court
appears to be whether or not these intentional tort claims give the
Plaintiff the right to be free of arbitration clauses in his employment
agreements, tort claims that typically are not the subject of such
Plaintiff alleges that his direct supervisor,
Senior Vice President Mark Bingham, had anger management issues which at
times flared-up in the
workplace, causing Plaintiff concern.
On March 30, 2015 during a production meeting, there was a
discussion concerning the displacement of certain employees from UCT’s
Hayward location. Mr. Bingham wanted
to immediately hire these individuals at UCT’s principal office in South
San Francisco, whereas Plaintiff suggested that they conduct interviews to
ensure these individuals were qualified.
As alleged, Mr. Bingham became enraged and started
shouting that they needed to hire these displaced employees now. Mr. Bingham slammed the office door shut,
and when Plaintiff attempted to leave the room, Mr. Bingham allegedly grabbed
Plaintiff by both biceps and violently pushed him against the wall.
Plaintiff says that he thereafter collected his personal items and
left the workplace, fearful of another altercation with Mr. Bingham. Once offsite, Plaintiff called UCT’s Human
Resources to officially report the incident and present a complaint
concerning the assault, battery, and false imprisonment. Plaintiff stated that for his safety and
the safety of others, he had left work for the day and would be returning
the next day, March 31, 2015.
However, when Plaintiff came in for work as
normal the next day, he discovered that his e-mail and phone had been
disabled. At noon, Plaintiff met
with Human Resources and Mr. Bingham, and was advised that his employment
had been terminated because it was “not a good fit”. Plaintiff brings causes of action for (1)
assault; (2) battery; (3) false
imprisonment; (4) violation of Labor Code §1102.5; (5) wrongful termination; (6)
defamation; (7) negligent supervision; and (8)
negligent retention against UCT.
Under Armendariz v.
Foundation Health Psychcare Services, Inc. (2000)
24 Cal.4th 83, “procedural and substantive unconscionability
must both 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. at 114. Here, the parties’ Arbitration Agreement
is at the least substantively unconscionable, and
procedurally unconscionable as well, due to its one-sidedness and lack of
Simple reference to the procedures of
arbitration, without more details regarding what those procedures are
and/or the failure to provide the applicable rules, supports a finding of
procedural unconscionability based on
surprise. Macias v. Excel Building Services LLC (N.D. Cal. 2011) 767
F.Supp2d 1002, 1011-12; Harper v.
Ultimo (2003) 113 Cal.App.4th 1402, 1406 (procedural unconscionability is supported by the fact that an
employee is “forced to go to another source to find out the full import of
what he or she is about to sign – and must go to that effort prior to signing.”).
Here, the Arbitration Agreement states that
“Arbitration shall be conducted pursuant to the rules of Judicial
Arbitration and Mediation Services (JAMS).”
(Decl. Mora ¶ 6, Exhibit C, page 2.)
There are arguably six (6) sets of JAMS arbitration rules which
could have been relevant, including but not limited to the Comprehensive
Rules; Streamline Rules; and Employment Rules. (Decl. Mora ¶ 16, Exhibit G.) UCT did not provide Plaintiff with a copy
of any specific JAMS rules at any time, reference to which rules applied, or even guidance on where to obtain the
rules. If, for example, the
Streamline JAMS Rules applied, Plaintiff would not have adequate discovery
Moreover, the Arbitration Agreement is
procedurally unconscionable because it was presented to Plaintiff on a
“take it or leave it” basis, which Plaintiff had to sign in order to get
the job. An arbitration agreement is
considered a contract of adhesion when it is “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.” Armendariz, supra at 113.
Here, the arbitration language did not clearly
explain what rights Plaintiff was waiving, and did not recite the terms of
arbitration clearly. “In order to be
enforceable, a contractual waiver of the right to a jury trial ‘must be
clearly apparent in the contract and its language must be unambiguous and
unequivocal, leaving no room for doubt as to the intention of the
parties.’” Badie v. Bank of America (1998)
67 Cal.App.4th 779, 804. There is no such agreement here, as the
language never once specifically states that the employee is waiving the
a jury trial. These facts also
support a finding of procedural unconscionability.
Here, there is also a strong element of
substantive unconscionability which militates
against enforcing the parties’ Arbitration Agreement. In order to obtain employment at UCT,
Plaintiff was required to sign a number of documents, including an
Employment Application, the Offer Letter, and a Confidentiality and
Non-Disclosure Agreement (which latter agreement is specifically referenced
and incorporated into the Offer Letter).
The Offer Letter’s arbitration provision, on
its face, appears to be mutual in that it states, “Arbitration shall be the
exclusive means through which you or the Company may seek relief in
connection with a dispute.” However,
specific types of disputes are mentioned in this arbitration provision,
including employment claims, termination of employment, compensation and
benefits, and the violation of any applicable laws, which are all employee claims.
The arbitration provision specifically makes an exception,
permitting “either party” to seek interim equitable relief from a court in
connection with a dispute concerning unfair competition or the
misappropriation of trade secrets.
While the “either party” language is arguably mutual, claims
concerning unfair competition or the misappropriation of trade secrets are
much more likely to be brought by the employer.
UCT also required Plaintiff to sign the
Confidentiality and Non-Disclosure Agreement, which places strict
obligations on Plaintiff with respect to trade secrets, fraud, non-competition, return of company property,
confidentiality, and non-solicitation.
This Confidentiality and Non-Disclosure Agreement then provides:
“15. Remedies. The Company and the Employee agree that
it would be difficult to measure the damage suffered by UCT and/or AIT as a
result of any breach by the Employee of this Agreement and that monetary
damages would therefore be an inadequate remedy for such a breach. Accordingly, the Employee agrees that the
UCT and/or AIT shall be entitled to injunctive or declaratory relief in
addition to any other remedies to which it may be entitled in the event of
a breach of this Agreement by the Employee.
16. Attorney Fees and Costs. If either party initiates litigation in
order to enforce the terms of this Agreement, the prevailing party in such
litigation shall be entitled to recover reasonable attorney fees and costs,
in addition to any other relief awarded, from the non-prevailing party.
Exhibit E, emphasis added.)”
UCT unconvincingly argues that these terms
inserted into the Confidentiality and Non-Disclosure Agreement are mutual,
and that in any case, they do not specifically state that enforcement of
the Agreement may be made in Superior Court as opposed to arbitration. Simply reading the above-quoted language,
it is abundantly clear that UCT intended to reserve to itself the right to
go to Court to enforce all employer-related claims, and to recover
attorney’s fees, while at the same time precluding employees from doing so on
their employee-related claims.
Lack of mutuality is fatal to an employment
arbitration agreement in California.
Armendariz, supra at 117-118 (“It is unfairly
one-sided for an employer with superior bargaining power to impose
arbitration on the employee as plaintiff but not to accept such limitations
when it seeks to prosecute a claim against the employee.”). Such one-sidedness is present where an
employer carves out exclusive court access for itself while depriving its
employees of similar access. Martinez v. Master Protection Corp. (2004)
118 Cal.App.4th 702, 725 (arbitration agreement unfairly
one-sided because it compels arbitration of claims more likely to be
brought by employee, the weaker party, but exempts from arbitration claims
more likely to be brought by employer, the stronger party).
The Court finds that the written
arbitration agreement between the parties is both procedurally and
substantively unconscionable under the factors set forth in Armendariz v Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83. Specifically, the lack of mutuality in
the parties’ ability to seek redress in Court for employer versus employee
claims is fatal to the arbitration agreement at issue. Armendariz,
supra at 117-118 (“It is
unfairly one-sided for an employer with superior bargaining power to impose
arbitration on the employee as plaintiff but not to accept such limitations
when it seeks to prosecute a claim against the employee.”).
The Court also notes
that aside from the statutory standards, as interpreted by appeals court
cases over the years, this is an unusual case where those statutory
limitations should not apply on grounds of fundamental unfairness. The
Court is of the opinion that trial judges still retain sufficient equitable
power to decline to send a case such as this into arbitration. See, e.g., RN Solution, Inc. v. Catholic Healthcare
West (1st Dist. 2008) 165 Cal. App.4th 1511, at
1524, holding that battery-related causes of action were not subject to
employee’s arbitration agreement.
unfairness is so flagrant here that the Court should and must decline to
enforce the arbitration clauses in this particular case on equitable
grounds: When, according to the allegations made here, Mr. Bingham
committed the torts of false imprisonment, assault, battery, and
defamation, his misconduct in doing so was such that the Defendant company
stepped outside the bounds and scope of its usual role of employer at the
management level. These intentional tort claims no more belong in
arbitration than the trade secret, fraud, non-competition, return of
company property, confidentiality, and non-solicitation claims – all claims
based on post-employment conduct falling outside the scope of the
employment itself -- that the company reserved for court actions.
For the reasons stated,
this Motion to Compel Arbitration is Denied.
If the tentative ruling
is uncontested, it shall become the Order of the Court, the tentative
ruling having provided sufficient Notice to the Parties under the
applicable Rules of Court. However, Counsel for the prevailing party shall
prepare a written form of Order consistent with this ruling. Form of Order
proposed to be submitted directly to Dept. 10 for signature by Judge Gerald