Rodriguez v. WWIL Personnel CA1/2 ( 2024 )

Filed 2/14/24 Rodriguez v. WWIL Personnel CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
DAMARI RODRIGUEZ,
Plaintiff and Respondent,
A166048
v.
WWIL PERSONNEL LLC, et al., (Alameda County
Super. Ct. No. 22CV006457)
Defendants and Appellants.
Plaintiff Damari Rodriguez was employed by defendants WWIL
Personnel, LLC (WWIL) and SAS Automotive, Inc. (SAS) for approximately
three weeks in September of 2021. Rodriguez does not speak English, but
before beginning work, she signed an arbitration agreement written in
English. Rodriguez brought suit against defendants alleging various
violations of the Labor Code, and the trial court denied WWIL’s motion to
compel arbitration, finding that the arbitration agreement lacked mutual
assent, and alternatively that the agreement was procedurally and
substantively unconscionable and therefore unenforceable. We reverse.
BACKGROUND
WWIL is a staffing agency that places temporary employees to work for
its clients. In late August or early September of 2021, WWIL placed
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Rodriguez at defendant SAS where she worked from approximately
September 2 to September 20, 2021 as a temporary full-time assembler in
Fremont, California.
On February 3, 2022, Rodriguez filed suit against defendants in
Alameda County Superior Court. The complaint alleged 10 causes of action,
the first eight of which alleged various violations of the Labor Code, and the
first nine of which were brought as a class action: (1) failure to provide
required meal periods, (2) failure to provide required rest periods, (3) failure
to pay overtime wages, (4) failure to pay minimum wages, (5) failure to pay
all wages due to discharged and quitting employees, (6) failure to maintain
required records, (7) failure to furnish accurate itemized wage statements,
(8) failure to indemnify employees for necessary expenditures incurred in
discharge of duties, (9) violation of the Unfair Competition Law (UCL), and
(10) a representative claim under the Private Attorneys General Act of 2004
(PAGA).
On April 14, WWIL moved to compel arbitration of Rodriguez’s claims.
The motion attached as Exhibit 1 a “Mutual Agreement to Arbitrate Claims”
(arbitration agreement), electronically signed by Rodriguez on September 6,
2021. The motion also attached the declaration of Kervin Carreno, an “on-
site coordinator” for WWIL, who testified that he recruited and placed
Rodriguez at SAS in September 2021, and that Rodriguez executed the
arbitration agreement along with other onboarding documents.
On June 22, Rodriguez filed opposition to the motion. The opposition
attached her declaration, stating that she, along with at least 10 other job
applicants, filled out a hard copy job application at SAS’s Fremont premises
before she started working. She testified that she “only speak[s] Spanish”
and does “not speak, write, or read English,” and that Carreno “knew that I
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only spoke Spanish and he spoke to me in Spanish.” She “believe[d]” that the
job application that she filled out was in Spanish, and recalled that it asked
for her contact information and employment history. She did not recall
signing any other documents as part of her hiring process, electronically or
otherwise. She also stated that she did not recognize the arbitration
agreement, never signed it, and saw it for the first time in connection with
WWIL’s motion.
In support of its reply, WWIL submitted a second declaration from
Carreno, in which he testified that he is fluent in Spanish, and that he met
with Rodriguez to discuss her employment, a discussion that took place
entirely in Spanish. He also stated that he was available at that meeting to
answer any questions Rodriguez may have had, but she did not “express any
questions, concerns, reservations, hesitations, or thoughts of any kind about
the Arbitration Agreement or any onboarding documentation.”
After a hearing, the trial court denied the motion by written order. The
court first concluded that because the arbitration agreement was presented
to Rodriguez in English, while WWIL knew that Rodriguez speaks only
Spanish, WWIL had failed to establish that the parties knowingly and
consensually entered into the agreement. The court found WWIL had
established that Rodriguez signed the agreement, but that the agreement
was procedurally unconscionable because it was presented to Rodriguez only
in English. And the court found substantive unconscionability in the
arbitration agreement’s limitation of each party to three fact witness
depositions. In denying the motion, the court acknowledged that it was
“choos[ing] to frame the issue” as defendant’s failure to prove the existence of
a contract, while noting that “[a]lternatively, this could be framed as a
contract that is unconscionable” because there was a high degree of
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procedural unconscionability, and a low degree of substantive
unconscionability.
WWIL filed a notice of appeal.
DISCUSSION
The Arbitration Agreement Does Not Lack Mutual Assent
WWIL first argues that the arbitration agreement does not lack mutual
assent simply because Rodriguez signed it in English, despite speaking only
Spanish. We agree.
“ ‘There is no uniform standard of review for evaluating an order
denying a motion to compel arbitration. [Citation.] If the court’s order is
based on a decision of fact, then we adopt a substantial evidence standard.
[Citations.] Alternatively, if the court’s denial rests solely on a decision of
law, then a de novo standard of review is employed. [Citations.]’ ” (Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60, quoting
Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419,
1425.) “[W]hen ruling on a petition to compel arbitration, the superior court
may consider evidence on factual issues such as contract formation bearing
on the threshold issue of arbitrability. . . . On appeal we must review the
court’s factual ruling on arbitrability under the substantial evidence test.”
(City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407.) “ ‘[W]e review
the trial court’s order, not its reasoning, and affirm an order if it is correct on
any theory apparent from the record.’ ” (Adajar v. RWR Homes, Inc. (2008)
160 Cal.App.4th 563, 571, fn. 3.)
We considered a similar question in Ramos v. Westlake Services LLC
(2015) 242 Cal.App.4th 674 (Ramos). There, plaintiff purchased a used car
from defendant, and signed a sales contract in English containing an
arbitration agreement. (Id. at pp. 677–679.) After plaintiff brought suit and
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defendant moved to compel arbitration, plaintiff submitted a declaration
indicating that his native language was Spanish, that the negotiations for the
car purchase had been conducted primarily in Spanish, and that he was
provided with what was purportedly a Spanish copy of the sale contract he
had signed in English, a copy that did not include the arbitration clause upon
which the defendant relied. (Id. at p. 679.)
We concluded that the contract lacked mutual assent, with the
following explanation:
“It is undisputed that Ramos signed the English Contract and that this
contract contains an arbitration agreement. Ramos, however, argues that he
was not aware that he was entering into an arbitration agreement because
‘[t]he words “arbitration” or “alternative dispute resolution” never came up
during Plaintiff’s discussions with the dealership, and Plaintiff never saw the
arbitration clause because it was hidden in the English version of the RISC.’
Although there is no evidence to contradict these facts, typically these
arguments would not be dispositive, and a person would be bound by the
arbitration agreement he or she had signed. ‘ “No law requires that parties
dealing at arm’s length have a duty to explain to each other the terms of a
written contract[.]” ’ (Brookwood v. Bank of America (1996) 45 Cal.App.4th
1667, 1674.) Further, ‘ “one who accepts or signs an instrument, which on its
face is a contract, is deemed to assent to all its terms, and cannot escape
liability on the ground that he has not read it. If he cannot read, he should
have it read or explained to him. ” ’ (Randas v. YMCA of Metropolitan Los
Angeles (1993) 17 Cal.App.4th 158, 163 (Randas), quoting 1 Witkin,
Summary of Cal. Law (9th ed. 1987) § 120, p. 145.) [¶] . . . [¶]
“Under the general contract principles just discussed, the fact that
Ramos signed a contract in a language he may not have completely
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understood would not bar enforcement of the arbitration agreement. If
Ramos did not speak or understand English sufficiently to comprehend the
English Contract, he should have had it read or explained to him. (See
Randas, supra, 17 Cal.App.4th at p. 163; see also 1 Williston on Contracts
(4th ed. 2007) § 4:19, pp. 588−590 [‘one who is ignorant of the language in
which a document is written, or who is illiterate, [who] executes a writing
proposed as a contract under a mistake as to its contents . . . is bound’].)
Here, however, Ramos is not attempting to avoid the arbitration agreement
because of his limited understanding of the English language. Rather, he is
relying on the fact that Pena’s Motors provided him with what purported to
be a Spanish translation of the English Contract he was being asked to sign,
a Spanish translation which did not contain the arbitration agreement.
[¶] . . . [¶]
“A contract is void for fraud in the execution where ‘ “ ‘the fraud goes to
the inception or execution of the agreement, so that the promisor is deceived
as to the nature of his act, and actually does not know what he is signing, or
does not intend to enter into a contract at all.’ ” ’ (Rosenthal [v. Great Western
Financial Securities Corp. (1996)] 14 Cal.4th 394, 415 [(Rosenthal)].) In this
instance, ‘ “ ‘mutual assent is lacking, and [the contract] is void. In such a
case it may be disregarded without the necessity of rescission.’ ” ’ (Ibid.) In a
fraud in the execution case, ‘California law . . . requires that the plaintiff, in
failing to acquaint himself or herself with the contents of a written
agreement before signing it, not have acted in an objectively unreasonable
manner. One party’s misrepresentations as to the nature or character of the
writing do not negate the other party’s apparent manifestation of assent, if
the second party had “reasonable opportunity to know of the character or
essential terms of the proposed contract.” ’ (Id. at p. 423.) Thus, a ‘party’s
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unreasonable reliance on the other’s misrepresentations, resulting in a failure
to read a written agreement before signing it, is an insufficient basis, under
the doctrine of fraud in the execution, for permitting that party to avoid an
arbitration agreement contained in the contract.’ (Ibid.)” (Ramos, supra,
242 Cal.App.4th at pp. 686–689.)
We went on to conclude that Ramos’s reliance on the Spanish
translation lacking the arbitration clause was reasonable, that therefore
mutual assent as to the arbitration agreement was lacking, and that it was
void. (Ramos, supra, 242 Cal.App.4th at p. 690.)
Not only is Ramos distinguishable, much of its discussion supports
WWIL here, which case is governed instead by the “general contract
principles” discussed in Ramos, including that “the fact that [Rodriguez]
signed a contract in a language [s]he may not have completely understood
would not bar enforcement of the arbitration agreement. If [Rodriguez] did
not speak or understand English sufficiently to comprehend the English
Contract, [s]he should have had it read or explained to [her].” (Ramos, supra,
242 Cal.App.4th at p. 687.)
Rodriguez agrees that the question is whether she had a “ ‘ “reasonable
opportunity to know of the character or essential terms of the proposed
contract.” ’ ([Rosenthal, supra, 14 Cal.4th] at p. 423). Thus, a ‘party’s
unreasonable reliance on the other’s misrepresentations, resulting in a failure
to read a written agreement before signing it, is an insufficient basis, under
the doctrine of fraud in the execution, for permitting that party to avoid an
arbitration agreement contained in the contract.’ (Ibid.)” (Ramos, supra,
242 Cal.App.4th at pp. 688–689.) Critical in Ramos was the fact that the
plaintiff was provided with what purported to be a Spanish language
translation of the contract he had signed, which did not contain the
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arbitration agreement found in the English version, and that his reliance on
that Spanish translation was reasonable. (Id. at p. 690.) Here, by contrast,
Rodriguez was not provided with a Spanish translation of the arbitration
agreement—she simply signed the document in English despite that she did
not “speak, write, or read English.” Further, Carreno who spoke fluent
Spanish, met with Rodriguez to discuss her employment and spoke with her
in Spanish, and was “available to answer any questions [temporary
employees] may have in either English or Spanish.” And as he testified, “[a]t
no point during that discussion, or at any time whatsoever, either verbally or
in writing, did Ms. Rodriguez ever express any questions, concerns,
reservations, hesitations, or thoughts of any kind about the Arbitration
Agreement.” In short, the evidence demonstrates that Rodriguez had a
reasonable opportunity to learn the character or the essential terms of the
arbitration agreement.
Najarro v. Superior Court (2021) 70 Cal.App.5th 871 (Najarro), on
which Rodriguez relies, is also distinguishable. There, the court found fraud
in the execution of an arbitration agreement as to two plaintiffs. (Id. at
p. 888.) The first plaintiff “did not know how to read. She was asked, ‘ “do
you want to work or not?” ’ She replied, ‘[W]hat do these documents say? I
don’t know how to read,’ to which she was told, ‘It’s okay, if you don’t know
how to read, then just sign them,’ adding that it was ‘nothing important.’ ”
(Id. at p. 887.) The second plaintiff was presented with the document at a
“glass window,” where “ ‘[d]efendants handed me another document to sign,
which I believe to be the [a]rbitration [a]greement, stating, “sign here,”
without an opportunity to read what I was signing. Defendants just flipped
to the signature page, put their hand over the document and had me sign,
stating, “it’s just a requirement to work for the company,” and did not permit
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me to read it.’ ” (Ibid.) Rodriguez, by contrast, does not allege that she was
pressured to sign the arbitration agreement, that defendants prevented her
from reading it, or that she was denied an opportunity to ask questions about
its contents, including during her meeting with Carreno.
Relying on Caballero v. Premier Care Simi Valley LLC (2021)
69 Cal.App.5th 512 (Caballero), Rodriguez also argues that once WWIL was
on notice that she did not speak English, the burden shifted to it to explain
the contents of the arbitration agreement in Spanish. That reliance is
misplaced. In Caballero, the plaintiff, who read and wrote only Spanish,
signed a two-page arbitration agreement in English when his mother was
admitted to defendant’s health care facility. (Id. at p. 514.) The trial court
denied the defendant’s motion to compel arbitration. The Court of Appeal
reversed, holding as follows:
“An exception to the general rule applies when a party was
fraudulently induced to sign the contract. (Ramos, supra, 242 Cal.App.4th at
p. 688 [contract void for fraud in the execution when party deceived as to
nature of document]; Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th
696, 702 [dispute resolution form failed to warn employee he was agreeing to
binding arbitration].) This exception is inapplicable here, because Caballero
does not contend Premier Care defrauded him or prevented him from
learning the contract’s terms. He simply states that, to the best of his
recollection, he was not presented with an Arbitration Agreement in Spanish
or an Arbitration Agreement in English that was explained to him. He cites
no authority suggesting it was Premier Care’s initial burden to ascertain
whether he could understand the English version. All Caballero had to do
was tell Elstein or one of Premier Care’s Spanish-speaking employees that he
cannot read English and the burden would have shifted to Premier Care to
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explain the contents of the Arbitration Agreement. His decision to sign a
document he could not read is not a basis for avoiding an arbitration
agreement. (See Brookwood v. Bank of America[, supra,] 45 Cal.App.4th [at
p.] 1674 [‘ “A party cannot use his own lack of diligence to avoid an
arbitration agreement” ’].)” (Caballero, supra, 69 Cal.App.5th at p. 519.)
We do not agree that the burden shifted to WWIL under Caballero to
explain the contents of the arbitration agreement to Rodriguez. Like the
plaintiff in Caballero, Rodriguez does not contend that defendants defrauded
her or prevented her from learning the arbitration agreement’s terms. And
Caballero cited no authority for its statement that had the plaintiff told
defendant that he could not read English, the burden would have shifted to
defendant to explain the agreement’s contents, and because Caballero
enforced the arbitration agreement at issue there, that statement is pure
dictum. In sum, Caballero does not contravene the general contract law
principles discussed in Ramos. We conclude that Rodriguez has failed to
demonstrate that the arbitration agreement lacked mutual assent.
Rodriguez Has Not Demonstrated Unconscionability
The General Law
California has a “ ‘strong public policy in favor of arbitration as a
speedy and relatively inexpensive means of dispute resolution.’ ”
(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh), quoting
Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street
(1983) 35 Cal.3d 312, 322 (Ericksen).) “In this state, as under federal law
[citation], doubts concerning the scope of arbitrable issues are to be resolved
in favor of arbitration.” (Ericksen, supra, 35 Cal.3d at p. 323; see Moncharsh,
supra, 3 Cal.4th at p. 9 [courts will “ ‘ “indulge every intendment to give effect
to such proceedings” ’ ”].) “Thus, under both federal and California law,
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arbitration agreements are 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; see also Code Civ. Proc., § 1281.)” (Armendariz v. Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98 (Armendariz),
fn. omitted.)
One of “such grounds” is the judicially created doctrine of
unconscionability, a subject we have distilled as follows: “In the seminal case
of Armendariz 24 Cal.4th 83, our Supreme Court addressed the validity of an
arbitration agreement signed by employees, and held that the agreement was
contrary to public policy and unlawful. In the course of doing so, the court
discussed the ‘judicially created’ doctrine of unconscionability, which, the
court held, has both a procedural and a substantive element, the former
focusing on oppression or surprise due to unequal bargaining power, the
latter on overly harsh or one-sided results. And the court went on, both
procedural and substantive unconscionability must both be present in order
for a court to refuse to enforce a contract under the doctrine of
unconscionability. ‘But they need not be present in the same degree . . . . In
other words, the more substantively oppressive the contract term, the less
evidence of procedural unconscionability is required to come to the conclusion
that the term is unenforceable, and vice versa.’ (Id. at p. 114.)” (Davis v.
TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 669.)
And in OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111 (Kho), our Supreme
Court defined substantive unconscionability:
“Substantive unconscionability examines the fairness of a contract’s
terms. This analysis ‘ensures that contracts, particularly contracts of
adhesion, do not impose terms that have been variously described as
“ ‘ “overly harsh” ’ ” [citation], “ ‘unduly oppressive’ ” [citation], “ ‘so one-sided
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as to “shock the conscience” ’ ” [citation] or “unfairly one-sided” [citation.] All
of these formulations point to the central idea that the unconscionability
doctrine is concerned not with “a simple old-fashioned bad bargain” [citation],
but with terms that are “unreasonably favorable to the more powerful
party.” ’ [Citation.] Unconscionable terms ‘ “impair the integrity of the
bargaining process or otherwise contravene the public interest or public
policy” ’ or attempt to impermissibly alter the fundamental legal duties.
[Citation.] They may include fine-print terms, unreasonably or unexpectedly
harsh terms regarding price or other central aspects of the transaction, and
terms that undermine the nondrafting party’s reasonable expectations.
[Citations.] These examples are illustrative, not exhaustive.” (Kho, supra,8 Cal.5th at pp. 129–130.)
“ ‘On appeal from the denial of a motion to compel arbitration, “we
review the arbitration agreement de novo to determine whether it is legally
enforceable, applying general principles of California contract law.” ’
[Citation.] Thus, unconscionability is a question of law we review de novo.
[Citation.] To the extent the trial court’s determination on the issue turned
on the resolution of contested facts, we would review the court’s factual
determinations for substantial evidence.” (Carmona v. Lincoln Millennium
Car Wash, Inc. (2014) 226 Cal.App.4th 74, 82; see JSM Tuscany, LLC v.
Superior Court (2011) 193 Cal.App.4th 1222, 1235; Roman v. Superior Court
(2009) 172 Cal.App.4th 1462, 1468–1469 (Roman).)
“[T]he party opposing arbitration bears the burden of proving any
defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v.
Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236)—a
burden Rodriguez has not met here.
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As noted, both procedural and substantive unconscionability must be
present to render the agreement unenforceable. Here, the trial court found a
high level of procedural unconscionability. WWIL disputes that, arguing that
the degree of procedural unconscionability is only “moderate.” Rodriguez
disagrees. We need not weigh in on the issue, for whatever the level of
procedural unconscionability, Rodriguez has not demonstrated substantive
unconscionability.
Rodriguez Has Not Demonstrated Substantive
Unconscionability
Before the trial court, Rodriguez briefly argued that the agreement was
substantively unconscionable and lacked mutuality because it was in
English. As noted, the trial court concluded that the agreement had a “low”
level of substantive unconscionability based on its limitation of each party to
three fact witness depositions. On appeal, Rodriguez has abandoned her
mutuality argument, and now argues that the agreement is substantively
unconscionable because it limits each party to three depositions. She also
makes, however briefly—and belatedly—two arguments not made below: the
agreement is substantively unconscionable because its written notice
provision is unfair, and because its class action waiver operates as a release
of a claim for wages.1 We disagree on all counts.
1 “ ‘ “It is well established that issues or theories not properly raised or
presented in the trial court may not be asserted on appeal, and will not be
considered by an appellate tribunal. A party who fails to raise an issue in the
trial court has therefore waived the right to do so on appeal.” ’ ” (Westsiders
Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th
1079, 1091.) “However, even where a legal argument was not raised in the
trial court, we have discretion to consider it when the theory raised for the
first time on appeal is a pure question of law applied to undisputed facts.
[Citations.]” (San Mateo Union High School Dist. v. County of San Mateo
(2013) 213 Cal.App.4th 418, 436.) Because Rodriguez’s arguments are purely
legal, and because the trial court found the discovery limitations
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Discovery Limitations
The discovery provision of the agreement provides as follows: “Each
party shall have the right to take depositions of three fact witnesses and any
expert witness designated by another party. Each party also shall have the
right to make requests for production of documents to any party and to
subpoena documents from third parties to the extent allowed by law.
Requests for additional depositions or discovery may be made to the
Arbitrator selected pursuant to this Agreement. The Arbitrator may grant
such additional discovery if the Arbitrator finds that the party has
demonstrated that it needs that discovery to adequately arbitrate the claim,
taking into account the parties’ mutual desire to have a speedy, less-formal,
cost-effective dispute-resolution mechanism.”
“A limitation on discovery is an important way in which arbitration can
provide a simplified and streamlined procedure for the resolution of disputes.
(Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 983 (Dotson); Armendariz,
supra, 24 Cal.4th at p. 106, fn. 11.) At the same time, ‘[a]dequate discovery is
indispensable for the vindication of statutory claims’ (Fitz v. NCR Corp.
(2004) 118 Cal.App.4th 702, 715 [(Fitz)]), and ‘[t]he denial of adequate
discovery in arbitration proceedings leads to the de facto frustration of’
statutory rights (Armendariz, supra, 24 Cal.4th at p. 104). In this context,
‘adequate’ does not mean ‘unfettered.’ (Mercuro v. Superior Court (2002)
96 Cal.App.4th 167, 184 (Mercuro).) In striking the appropriate balance
between the desired simplicity of limited discovery and an employee’s
statutory rights, courts assess the amount of default discovery permitted
under the arbitration agreement, the standard for obtaining additional
substantively unconscionable even though Rodriguez did not make that
argument in opposing the motion to compel arbitration, we will exercise our
discretion to consider her arguments here.
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discovery, and whether the plaintiffs have demonstrated that the discovery
limitations will prevent them from adequately arbitrating their statutory
claims. (Poublon v. C.H. Robinson Co. (9th Cir. 2017) 846 F.3d 1251, 1270
(Poublon).)” (Davis v. Kozak (2020) 53 Cal.App.5th 897, 910–911 (Davis).)
As noted, the arbitration agreement provides for depositions of “three
fact witnesses and any expert witness designated by another party,” and
gives each party the “right to make requests for production of documents to
any party and to subpoena documents from third parties to the extent
allowed by law.” Although the agreement does not expressly provide for
interrogatories or requests for admission, it does provide that the arbitrator
may grant any additional discovery where “the Arbitrator finds that the
party has demonstrated that it needs that discovery to adequately arbitrate
the claim, taking into account the parties’ mutual desire to have a speedy,
less-formal, cost-effective dispute-resolution mechanism.”
The amount of default discovery permitted here, and the standard for
obtaining more, are even more permissive than those approved by the court
in Dotson, supra, 181 Cal.App.4th 975. There, the arbitration agreement
provided that “ ‘[e]ach party shall have the right to take the deposition of one
individual and any expert witness designated by another party’ ”; that
“ ‘[e]ach party also shall have the right to make requests for production of
documents to any party’ ”; and that “ ‘[a]dditional discovery may be had
where the Arbitrator selected pursuant to this Agreement so orders, upon a
showing of need.’ ” (Id. at p. 982.) In finding these discovery limitations were
not substantively unconscionable, Dotson first observed that the limitations
were not “different in any meaningful respect” from the American Arbitration
Association (AAA) rules, which give the arbitrator authority to limit
discovery and “ ‘to order such discovery, by way of deposition, interrogatory,
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document production, or otherwise, as the arbitrator considers necessary to a
full and fair exploration of the issues in dispute, consistent with the
expedited nature of the arbitration.’ ” (Id. at p. 983; see Roman, supra,172 Cal.App.4th at p. 1475 [rejecting argument that the AAA discovery rules
are unconscionable because they give arbitrator discretion to deny
depositions].) Relying on the fact that the agreement gave the arbitrator
“broad discretion” to order further discovery without “a showing of
‘substantial’ or ‘compelling’ need or . . . any other limitation,” the Dotson
court concluded that the discovery limitations in that case did not render the
arbitration agreement substantively unconscionable. (Dotson, supra,
181 Cal.App.4th at p. 984.)
Default discovery limitations similar to those here have been found not
to be unconscionable in other cases, illustrated by these three:
Sanchez v. Carmax Auto Superstores California, LLC (2014)
224 Cal.App.4th 398 (Carmax), where the court considered discovery
limitations that provided for disclosure of relevant documents and limiting
each party to 20 interrogatories and three depositions, with further discovery
available upon a showing of “substantial need” if the arbitrator concluded
allowing additional discovery. (Id. at pp. 404–406.)
Mercuro, supra, 96 Cal.App.4th 167, where the court found discovery
limitations providing that “ ‘each side shall be limited to three depositions
and an aggregate of 30 discovery requests of any kind, including sub-parts,
except as mutually agreed to by the parties,’ ” with “ ‘a presumption against
increasing the aggregate limit on requests,’ ” and a requirement that “
‘additional discovery requests shall be granted only upon a showing of good
cause’ ” not to be substantively unconscionable. (Id. at pp. 182–184.)
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Torrecillas v. Fitness International, LLC (2020) 52 Cal.App.5th 485(Torrecillas), where the agreement limited the parties to 30 interrogatories
and five depositions, with further discovery available upon a showing of
“substantial need.” (Id. at pp. 496–498.)
Perhaps more importantly, Rodriguez has not demonstrated that the
discovery limitations here will prevent her from adequately arbitrating her
statutory claims.2 As noted, she made no such showing below, because she
did not even argue that the discovery limitations were substantively
unconscionable to the trial court. She had not estimated any number of
depositions, interrogatories, or other discovery that would be necessary to
arbitrate her claims. (See Mercuro, supra, 96 Cal.App.4th at p. 183 [“without
evidence showing how these [discovery limitations] are applied in practice,
we are not prepared to say they would necessarily prevent Mercuro from
vindicating his statutory rights”]; Poublon, supra, 846 F.3d at p. 1271
[rejecting substantive unconscionability argument where plaintiff “fails to
make any showing that she would be unable to vindicate her rights under the
standard provided in the agreement”].) The complaint itself —only 16 pages
long—does not allege any specifics of Rodriguez’s employment with
defendants, although the declarations filed in connection with the motion to
compel arbitration indicate she worked for defendants for some 19 days.
In support of her unconscionability argument, Rodriguez simply
observes that hers is an employment case alleging various Labor Code
2 The parties dispute whether the showing required must include
evidence. (Compare Davis, supra, 53 Cal.App.5th at p. 912 [showing made
based on appellate review of the record], with Torrecillas, supra, 52
Cal.App.5th at p. 497 [showing not made where plaintiff “argue[d] he
requires certain documents and witnesses” in his brief but “submitted no
evidence”].) We need not resolve this dispute because Rodriguez’s showing is
inadequate under either approach.
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violations, and relies on the following observation from Baxter v. Genworth
North America Corporation (2017) 16 Cal.App.5th 713 (Baxter):
“Employment disputes are factually complex, and their outcomes ‘are often
determined by the testimony of multiple percipient witnesses, as well as
written information about the disputed employment practice.’ (Fitz, supra,118 Cal.App.4th at p. 717.) Seemingly neutral limitations on discovery in
employment disputes may be nonmutual in effect. ‘ “This is because the
employer already has in its possession many of the documents relevant to an
employment discrimination case as well as having in its employ many of the
relevant witnesses.” ’ (Id. at p. 716.)” (Baxter, supra, 16 Cal.App.5th at
p. 727.) But Baxter and Fitz were factually complex cases: Baxter was a
wrongful termination action brought by an employee who had worked for the
defendant for some 13 years; Fitz was brought by a 20-year employee against
the defendant for age discrimination in violation of the Fair Employment and
Housing Act. But beyond that, discovery limitations similar to those at issue
here have been found not to be unconscionable in numerous employment
cases. (See Carmax, supra, 224 Cal.App.4th at pp. 404–406; Mercuro, supra,96 Cal.App.4th at pp. 182–184; and Torrecillas, supra, 52 Cal.App.5th at
pp. 496–498.) The mere fact that this is an “employment dispute” does not
mean that the default amount of discovery provided is inadequate.
Finally on this issue, we note that the cases relied on by Rodriguez are
distinguishable.
In De Leon v. Pinnacle Property Management Services, LLC (2021)
72 Cal.App.5th 476, the agreement limited each party to 20 interrogatories
and three depositions. (Id. at p. 482.) The interrogatories could include “ ‘a
request for all documents upon which the responding party relies in support
of its answers to the interrogatories,’ ” but the agreement otherwise
18
contained no express provision for the production of relevant documents.
(Ibid.) The arbitrator could order more discovery upon a showing of
“substantial need,” “ ‘but only if the Arbitrator finds that such additional
discovery is not overly burdensome, and will not unduly delay conclusion of
the arbitration.’ ” (Id. at p. 487.) The plaintiff demonstrated that the default
discovery was inadequate through a declaration from his counsel, who
“estimated he would need to depose seven witnesses, three of whom are
identified by name in the complaint,” propound 50 interrogatories, and serve
at least 70 requests for documents to support the complaint’s 13 causes of
action. (Id. at pp. 489−490.) Here, the default discovery provides for
unlimited production of documents, further discovery can be ordered under a
less stringent standard, and Rodriguez has made no such showing that the
default discovery limitations are inadequate.
In Baxter, supra, 16 Cal.App.5th 713, the agreement allowed each
party to submit up to 10 interrogatories to another party, propound five
written requests for documents, and depose two individuals for a total of no
more than eight hours. (Id. at p. 727.) Further discovery was available “ ‘for
good and sufficient cause shown’ ” in order “ ‘to ensure that a party has a fair
opportunity to present a case.’ ” (Ibid.) Baxter noted that the case was
“factually complex,” “involving an employee who had a 12–year employment
history [with the defendant],” that “[r]elevant documents include those
relating to family leave practices, evaluation policies, reorganization, prior
complaints similar to Baxter’s, communications concerning Baxter’s
discipline and termination, and Genworth’s internal investigation,” and that
Baxter had “estimated she would need to depose an estimated six to
10 witnesses, six of whom are already identified in her complaint” and “would
need to depose persons [defendant] would designate as most knowledgeable
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on a variety of topics depending upon the defenses [defendant] may assert.”
(Id. at pp. 727−729.) The court also noted that the “good and sufficient cause”
standard was vague, and “presents a more stringent standard than [the]
simple ‘showing of need’ ” approved in Dotson. (Baxter, at p. 729.) Here, by
contrast, the default discovery is more generous, the standard for additional
discovery less stringent, and critically, Rodriguez has made no comparable
showing that the default discovery is inadequate.
In Fitz, supra, 118 Cal.App.4th 702, the agreement limited discovery to
the sworn deposition statements of two individuals and any expert witnesses
expected to testify at the arbitration hearing, with no other discovery allowed
unless the arbitrator found “compelling need” for it. (Id. at p. 716.) The
agreement also required the arbitrator to limit discovery as specified in the
agreement “unless the parties can demonstrate that a fair hearing would be
impossible without additional discovery.” (Ibid.) Fitz estimated she would
need to depose eight to 10 witnesses. (Ibid.) The Fitz court concluded that
“the burden the [agreement] imposes on the requesting party is so high and
the amount of discovery the policy permits by right is so low that employees
may find themselves in a position where not only are they unable to gain
access to enough information to prove their claims, but are left with such
scant discovery that they are unlikely to be able to demonstrate to the
arbitrator a compelling need for more discovery.” (Id. at pp. 717–718.) Here
again, the amount of default discovery permitted is more generous, the
standard for obtaining more less stringent than “compelling need,” and
Rodriguez has made no showing that the default limitations are inadequate.
In Davis, supra, 53 Cal.App.5th 897, the agreement permitted each
party to take a maximum of two depositions, and contained no express
provisions entitling the parties to propound interrogatories, requests for
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admission, or demands for production of all relevant documents, with the
arbitrator able to order additional discovery on a showing of “sufficient
cause.” (Id. at p. 911.) Davis observed that the plaintiff “had a 15-year work
history” with the defendant, and had “offered facts tending to show that the
alleged age and sex harassment ‘dramatically increas[ed]’ since 2010 and
continued until his termination in 2018.” (Id. at p. 912.) He alleged he had
been “subjected to ageist slurs directed at him in the presence of multiple
witnesses,” and had “witness[ed] the sexual harassment and abuse of
multiple women, including Red Bull employees.” (Ibid.) Davis concluded
that “[r]elevant documents would include, at minimum, those relating to
Davis’s work performance, discipline and termination, the reports of age and
sex harassment by Davis and others, and the company’s internal
investigations. In short, Davis has demonstrated that he has a factually
complex case involving numerous percipient witnesses, executives, and
investigators, and that the arbitration agreement’s default limitations on
discovery are almost certainly inadequate to permit his fair pursuit of these
claims.” (Id. at pp. 912–913, fn. omitted.) Again, Rodriguez has made no
such factual showing that the default discovery limitations are inadequate,
especially for an employee who worked all of 19 days.
The Written Notice Provision
The notice provision in the agreement provides: “The Company and I
agree that the aggrieved party must give written notice of any claim to the
other party no later than the expiration of the statute of limitations (deadline
for filing) that the law prescribes for the claim. Otherwise, the claim shall be
deemed waived.” Rodriguez argues that the notice provision is substantively
unconscionable.
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Rodriguez provides no authority in support of this argument, but
simply asserts that because the agreement was in English, she was unlikely
to be able to provide the required notice. But she would have been required
to file her claims within the limitations period even absent the arbitration
agreement. Moreover, parties to an arbitration agreement may even agree to
shorten the limitations period for claims without making the agreement
unconscionable. (See Gostev v. Skillz Platform, Inc. (2023) 88 Cal.App.5th
1035, 1060 [“Parties may contract to a shortened limitations period so long as
the limitation is reasonable”]; Ellis v. U.S. Security Associates (2014) 224
Cal.App.4th 1213, 1222–1223.) Rodriguez has failed to demonstrate that the
notice provision is substantively unconscionable.
The Class Action Waiver
The agreement contains a class action waiver, which provides: “To the
maximum extent permitted by law, I hereby waive any right to bring on
behalf of persons other than myself, or to otherwise participate with other
persons in, any class or collective action.” Rodriguez argues that this class
action waiver is unconscionable because it is a pre-dispute waiver barred by
Labor Code section 206.5, subdivision (a): “An employer shall not require the
execution of a release of a claim or right on account of wages due, or to
become due, or made as an advance on wages to be earned, unless payment of
those wages has been made. A release required or executed in violation of
the provisions of this section shall be null and void as between the employer
and the employee.”
We do not understand how the class action waiver operates as a release
of a claim for wages due, nor how defendants “required” Rodriguez to agree to
it. (See Pulli v. Pony International, LLC (2012) 206 Cal.App.4th 1507, 1520
[“[Labor Code] section 206.5 prohibits an employer from obtaining a release
22
of a claim for wages under specified circumstances, and does not preclude a
party from waiving its right to a jury trial by entering into an agreement
containing an arbitration provision”].) Indeed, the arbitration agreement
expressly provides that “[a]rbitrable claims include, but are not limited to . . .
claims for wages or other compensation due.” In any event, even assuming
there is some conflict between the class action waiver and Labor Code section
206.5, the waiver by its express terms only operates “[t]o the maximum
extent permitted by law.” (See Torrecillas, supra, 52 Cal.App.5th at p. 500
[by excluding arbitration “where the law specifically forbids [it]” agreement
“steers clear” of potential violation of plaintiff’s right to bring a PAGA claim].)
Rodriguez has not carried her burden to show that the class action waiver
makes the arbitration agreement substantively unconscionable.
Finally, because we conclude that the arbitration agreement is not
substantively unconscionable, we need not address the parties’ arguments
regarding procedural unconscionability. (See Kho, supra, 8 Cal.5th at p. 125
[both procedural and substantive unconscionability must be shown to
establish defense of unconscionability].)
DISPOSITION
The order denying the motion to compel arbitration is reversed. The
case is remanded for further proceedings consistent with this opinion. WWIL
shall recover its costs on appeal.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P. J.
_________________________
Miller, J.
Rodriguez v. WWIL Personnel LLC (A166048)
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