BIBBS vs RAISING CANES USA LLC, et al.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with

25CV009408: BIBBS vs RAISING CANES USA LLC, et al. 12/02/2025 Hearing on Motion to Compel Arbitration in Department 53

a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06. Moving counsel is directed to contact opposing counsel and/or selfrepresented litigants and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. If moving counsel is unable to contact opposing parties prior to hearing, moving counsel is ordered to appear at the hearing by Zoom or by telephone.

The motion of Defendant Raising Cane’s USA, L.L.C. (“Defendant” or “Raising Cane”) to compel Plaintiff Elzie Bibbs (“Plaintiff”) to arbitrate the claims asserted in this action is ruled on as follows.

This is an employment action for wrongful termination and violation of various provisions of the Labor Code. Defendant moves to compel the claims to arbitration. Plaintiff opposes the motion.

As a preliminary issue, the Court notes Defendant appears to seek to compel Plaintiff to arbitrate not only the claims against Defendant, but also to arbitrate claims against non-moving individual Defendants Danielle Hilton and Marlene McCullah (the “Individual Defendants”). (Notice, p. 2:8-10.) However, Defendant’s notice of motion clearly states the motion is brought solely by Defendant Raising Cane. Further, the Individual Defendants have not appeared in this action and did not join Defendant’s motion by satisfying the requirements of Local Rule 2.09.

While the absence of such facts are sufficient to dispense with a request by Defendant to compel arbitration as to the Individual Defendants, the Court also notes that Defendant did not provide any supporting declarations indicating the Individual Defendants’ desire to arbitrate the claims, and there is no evidence that the Individual Defendants have authorized Raising Cane to bring this motion on their behalf. Under these circumstances, the Court finds Raising Cane has also failed to demonstrate it has standing to move to compel arbitration on behalf of the Individual Defendants.

Thus, to the extent Raising Cane’s motion to compel arbitration is intended to include claims against the Individual Defendants, the motion is denied without prejudice to the Individual Defendants’ right to file a motion if they choose to do so.

Analysis

“[A]rbitration is a matter of consent, not coercion.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 244.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV009408: BIBBS vs RAISING CANES USA LLC, et al. 12/02/2025 Hearing on Motion to Compel Arbitration in Department 53

party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Id. at p. 236.) An arbitration agreement must generally be memorialized in writing, but acceptance of the agreement may be implied in fact or by delegated consent. (Ibid.)

Federal Arbitration Act

Defendant claims the arbitration agreements are governed by the Federal Arbitration Act (“FAA”). Plaintiff does not dispute this contention in opposition and cites to the FAA in support of Plaintiff’s argument. Thus, the Court will apply the FAA in considering the agreements.

Existence of Agreement

“The burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164.) “However, the burden of production may shift in a three-step process.” (Id., p. 165.) The moving party meets its initial burden by attaching a copy of the arbitration agreement or setting forth its terms verbatim. (Ibid.; Cal. Rules of Court, rule 3.1330.) “For this step, ‘it is not necessary to follow the normal procedures of document authentication.’” (Ibid. quoting Condee v.

Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) Once the moving party meets its initial prima facie burden, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. (Ibid.) If the opposing party meets its burden, the petitioning party must then offer admissible evidence to demonstrate the arbitration agreement is valid. (Ibid.)

Generally, “[a]rbitration provisions in a CBA are enforceable with respect to claims made by a union member.” (Oswald v. Murray Plumbing & Heating Corp. (2022) 82 Cal.App.5th 938, 942.) “The courts will relax this rule only where enforcement of a collective bargaining term would contravene and extraordinarily strong and explicit state policy.” (San Lorenzo Education Ass’n v. Wilson (1992) 32 Cal.3d 841, 846.)

Defendant moves to compel arbitration pursuant to three arbitration agreements, which are attached to Defendant’s motion, and were purportedly entered into by the parties on February 14, 2025, May 23, 2023, and August 10, 2022. (See Wynn Decl., Exhs. C-E.) The agreements were signed on behalf of Defendant but do not bear Plaintiff’s physical signature. (Ibid.) However, Defendant submits evidence that Plaintiff was presented a task in Defendant’s electronic “Workday” platform to review and acknowledge the agreements, was informed that clicking a check box would constitute an electronic signature to the agreement and that Plaintiff actually logged into a Workday account using a unique username and mobile pin, clicked the check-box for each agreement indicating acceptance, and clicked the submit button. (Id., ¶¶ 8-11, Exhs.

A- B; Supplemental Wynn Decl., ¶ 4.) This includes evidence that specifically, on February 14, 2025, at 1:29 p.m., Plaintiff “electronically acknowledged/signed the Mutual Agreement to Arbitrate Claims.” (Wynn Decl., ¶¶ 8-9.) Defendant produces similar evidence regarding

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV009408: BIBBS vs RAISING CANES USA LLC, et al. 12/02/2025 Hearing on Motion to Compel Arbitration in Department 53

Plaintiff’s electronic approval and acceptance of the prior May 23, 2023 and August 10, 2022 arbitration agreements. (Id. at ¶ 11; Supplemental Wynn Decl., ¶¶ 3-4.) The Court finds that Defendant has produced far more evidence than required to satisfy Defendant’s initial burden of attaching a copy of the arbitration agreement or setting forth its terms verbatim. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164.)

Because Defendant has satisfied its initial burden, Plaintiff bears the burden of producing evidence to challenge the authenticity of the agreement(s). In opposition, Plaintiff argues there is no agreement to arbitrate because the arbitration agreement does not bear Plaintiff’s signature. Plaintiff does not dispute logging into Workday and completing various tasks. However, Plaintiff contends he did not review any documents, did not understand he was signing documents, was not given sufficient time to review documents during, had no ability to negotiate the documents, has never seen the arbitration agreement, and was never told he was signing an arbitration agreement. (Plaintiff Decl., ¶¶ 2-4.)

While it is questionable whether Plaintiff has satisfied its burden under Gamboa, the Court finds that even if Plaintiff has done so, Defendant’s evidence, under the third step of the burdenshifting process, is sufficient to establish a valid arbitration agreement. “An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Code Civ.

Proc. § 1633.9.) As described above and in greater detail in the filed declarations, Defendant has submitted sufficient evidence to demonstrate that Plaintiff electronically signed the arbitration agreements. (See Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 [suggesting evidence that a person logged into an HR system using a unique login and password and the date and time of the electronic signature would be sufficient to authenticate the signature].) Further, “[a]n arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” (Pinnacle Museum Tower Assn. v.

Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) Thus, Plaintiff’s contention that he did not actually open and read the arbitration agreements is not sufficient to overcome the substantial evidence that Plaintiff assented to the agreements. The Court finds Defendant has met the burden to establish the existence a valid arbitration agreement[1].

Enforceability

Plaintiff argues the Court should refuse to enforce the arbitration agreement on grounds it is unconscionable under the Federal Arbitration Act, 9 U.S.C. § 2.

The unconscionability doctrine may be applied to arbitration provisions using the same principles applied to any contractual clause. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 912.) Unconscionability must have both a procedural and substantive element. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) While

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV009408: BIBBS vs RAISING CANES USA LLC, et al. 12/02/2025 Hearing on Motion to Compel Arbitration in Department 53

procedural and substantive unconscionability need not be present to the same degree, both must be present in order for a court to refuse to enforce a contract clause. (Id., p. 114.) “Courts are required to determine the unconscionability of the contract ‘at the time it was made.’” (Sanchez, supra, 61 Cal.4th at p. 920 quoting Civ. Code § 1670.5.)

Defendant argues the Court may not consider Plaintiff’s argument that the agreement is unconscionable because the arbitration agreements gives the arbitrator exclusive authority to determine whether the agreements are unconscionable.

The “question of who would decide the unconscionability of an arbitration provision is not one that the parties would likely focus upon in contracting[.]” (Ajamian v. CantorCO2e, L.P. (2012) 213 Cal.App.4th 771, 782.) Thus, “the enforceability of an arbitration agreement is ordinarily to be determined by the court.” (Id. at p. 781.) However, the parties may delegate issues of enforceability, including unconscionability, to the arbitrator. (Ibid.) To be effective, a delegation must be clear and unmistakable. (Ibid; Rent-A-Center, W., Inc. v.

Jackson (2010) 561 U.S. 63, 79.) “‘There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.’” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892.) Absent a challenge specifically to a delegation clause, a clear and unmistakable delegation clause must be enforced. (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 888; Rent-A-Center, supra, 561 U.S. at p. 72.)

Subject to exceptions for certain types of disputes not at issue here, the arbitration agreement states: “Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or waiver of this Agreement.” (Wynne Decl., Exh. C.)

Defendant’s argue this provision delegates this issue of unconscionability to the arbitrator. Plaintiff’s opposition does not raise any dispute explaining why the arbitration agreement does not delegate the issue of unconscionability to the arbitrator. A failure to oppose this point is construed as Plaintiff’s concession on the merits. (See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.) Further, courts have found similar language to satisfy the requirements for a clear and unmistakable delegation of the issues of enforceability to the arbitrator. (See, e.g., Rent-A-Center, supra, 561 U.S. at p. 71; Najarro, supra, 70 Cal.App.5th at p. 888; Aanderud, supra, 13 Cal.App.5th at p. 892.) Accordingly, the Court finds the language is sufficient to create a clear and unmistakable delegation clause.

The Court next determines whether Plaintiff’s argument that the agreement is unconscionable may be considered as a challenge to the delegation clause itself. In order to successfully challenge a delegation clause on grounds of unconscionability, a party’s assertion that arbitration is substantively unconscionable must be specific to the delegation clauses. (Rent-A-Center, supra, 13 Cal.App.5th at p. 73 [The court need not consider whether an arbitration agreement is

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

25CV009408: BIBBS vs RAISING CANES USA LLC, et al. 12/02/2025 Hearing on Motion to Compel Arbitration in Department 53

procedurally unconscionable unless the substantive unconscionability challenges are specific to the delegation provision]; Najarro, supra, 70 Cal.App.5th at p. 889 [if a party fails to raise a specific challenge to a delegation clause, the Court may only consider whether the agreement was entered into and may not consider a challenge to the entirety of the arbitration agreement].) Again, the opposition makes no express mention of the delegation clause or whether the Court has authority to determine the enforceability of the agreement.

Rather, Plaintiff’s arguments that the agreement is unconscionable are only generally addressed to the entire agreement without any specific challenge to the delegation clause itself. This is insufficient to challenge the delegation clause on grounds of unconscionability. The Court is therefore limited to considering the issue of whether an arbitration agreement exists as previously addressed. Plaintiff’s arguments that the agreement is unconscionable and may not be enforced must be determined by the arbitrator.

The Court makes no ruling on the issue of unconscionability.

Disposition

The motion to compel arbitration is GRANTED as to Defendant Raising Cane’s USA, L.L.C. and denied without prejudice as to the Individual Defendants. The action is STAYED as to Plaintiff’s claims against Defendant pending arbitration, including arbitration of any issues regarding the enforceability of the agreement based upon unconscionability. The parties shall select an arbitrator using the method for appointing an arbitrator set forth in the agreement.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. [1] The parties do not provide any analysis as to which of the three agreements, if any, is controlling. However, the

moving memorandum indicates Defendant is seeking to compel arbitration based on the third, most recent agreement or alternatively, based on the other agreements. (Moving Memo., p. 6:17.) Plaintiff’s opposition does not offer any explanation as to why Defendant cannot seek to separately enforce the agreements, in the alternative. Further, in arguing the agreement is unconscionable, the opposition cites to language in the third, most recent agreement. Accordingly, the Court will first consider whether Defendant may compel arbitration under the third agreement executed on February 14, 2025, and will consider the motion as to the prior agreements only as alternative relief, if necessary.