M. (SEUNG-RIM) CHOI v. BARCELINO CONTINENTAL CORPORATION ET AL.

On or about September 1, 2017, Plaintiff signed an Arbitration Agreement which provides in part:

This arbitration agreement (the “Agreement”) is made and entered into by and between Barcelino Continental Corp. (the “Company”) and Seung-Rim Choi (“Applicant”) (collectively, the “parties”). Reference in this Agreement to the “Company” will also be a reference to its parent company, if any, and all subsidiary and affiliated entities, all benefit plans, the benefit plans’ sponsors, fiduciaries, administrators, affiliates, and all successors and assigns of any of them. In consideration of the promises set forth in this Agreement, the parties agree as follows:

1. Waiver of Right to Trial. The parties understand that by entering into this Agreement, they are waiving any right they may have to file a lawsuit or other civil action or proceeding against each other, and are voluntarily waiving any right they may have to resolve disputes between the parties through trial by judge or jury. Any and all claims or disputes arising out of or relating to the employment relationship and/or the termination of the employment relationship between the parties that are not resolved by their mutual agreement shall be resolved exclusively by final and binding arbitration. The parties have the right to be represented by counsel in any arbitration proceedings commenced pursuant to this Agreement.

2. Claims Subject to Arbitration. All claims, demands, causes of action or controversies, past, present or future that the Applicant may have against the Company, its officers, directors, employees, independent contractors or agents in their capacity as such or otherwise, whether individually or as a class action, or that the Company may have against Applicant (collectively the “Claims”), shall be resolved by final and binding arbitration. The Claims include but are not limited to any claims or disputes in connection with (1) the hiring process, (2) the employment relationship between the parties, (3) the termination of said employment relationship; (4) any contracts between the parties; (5) any and all Claims arising under any federal, state or local law or regulation, including, but not limited to, those relating to employment, compensation, wages, hours, benefits (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in a dispute resolution procedure different from this one), discrimination, harassment, wrongful termination, wrongful demotion, breach of contract, breach of the implied covenant of good faith and fair dealing, intentional or negligent infliction of emotional distress, violation of public policy, retaliation,. fraud, defamation, invasion of privacy, negligence, assault or battery.

The Claims for discrimination and harassment include but are not limited to those based on race, color, sex, sexual orientation, religion, national origin, ancestry, citizenship, age, marital status, physical disability, pregnancy, mental disability or medical condition, veteran status, and any claims arising under the California Fair Employment and Housing Ac4 the California Family Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Equal Pay Act, the Civil Rights Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, Title VII of the Civil Rights Act of 1964 as amended, the California Labor Code, and any other local, state, federal or common law concerning employment or employment discrimination or harassment . . .

(Declaration of Sharam Sharei, Exh. A.) Plaintiff does not dispute that she signed the Agreement.

Discussion

Waiver

Plaintiff argues that Defendants waived their right to compel arbitration because they have already filed an Answer.

“A petition to compel arbitration will be denied when the right has been waived by the proponent’s failure to properly and timely assert it. Courts consider a number of factors when assessing a waiver claim: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party.” (Roman v.

Superior Court (2009) 172 Cal.App.4th 1462, 1478 [citations and internal quotations omitted].)

In Roman, the court found there was no waiver even though the defendant had filed a demurrer, served objections to discovery requests, and filed a motion to compel a deposition in which it asserted it intended to file a summary judgment motion. The court stated: “[Defendant] filed its notice of petition to compel arbitration a little more than two months after [plaintiff] filed her complaint. At the time, no substantive discovery responses had been served by either side, and no formal hearings had taken place on the discovery issues.

Moreover, the discovery requests [defendant] served (a set of form interrogatories and a request for production of documents) were authorized under the AAA rules; thus the discovery sought (although not received) did not seek to take advantage of discovery tools unavailable in arbitration.” (Id.) The court further stated that even though the plaintiff had incurred litigation expenses, “[W]aiver does not occur by mere participation in litigation if there has been no judicial litigation of the merits of arbitrable issues and no prejudice.

Because merely participating in litigation, by itself, does not result in a waiver, courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.” (Ibid. [citation and internal quotations omitted].) “Prejudice in the context of waiver of the right to compel arbitration normally means some impairment of the other party’s ability to participate in arbitration.” (Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1197.)

Here, Defendants merely filed an Answer. There is no showing that they propounded discovery or filed any pleadings relating to the merits. Further, Plaintiff has not identified any prejudice she has suffered as a result of the short delay between the filing of the Answer and the motion to compel arbitration. Defendants therefore did not waive their right to compel arbitration.

Section 1281.2(c)

Code of Civil Procedure Section 1281.2(c) provides in part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that . . . (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.”

Plaintiff argues that the Court should exercise its discretion and refuse to compel arbitration under Section 1281.2(c) because Sharei is not a signatory to the Agreement and is thus a “third party” to this court action for purposes of Section 1281.2(c).

“The court’s discretion under section 1281.2, subdivision (c) does not come into play until it is ascertained that the subdivision applies, which requires the threshold determination of whether there are non-arbitrable claims against at least one of the parties to the litigation (e.g. a nonsignatory). When a nonsignatory has the right to enforce an arbitration agreement based on application of the equitable estoppel doctrine, section 1281.2(c) does not come into play.” (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 709 [citation and internal quotations omitted]; see Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1407 [nonsignatory could enforce arbitration agreement under doctrine of equitable estoppel and thus was not “third party” under Section 1281.2(c)].)

Here, Sharei can enforce the Agreement as a third party beneficiary. The Agreement requires the parties to arbitrate “[a]ny and all claims or disputes arising out of or relating to the employment relationship and/or the termination of the employment relationship”, and “[a]ll claims that [Plaintiff] may have against the Company, its officers, directors, employees, independent contractors or agents”, except as specifically stated in the Agreement (e.g., workers compensation). By expressly requiring arbitration of claims against Barcelino’s officers and agents – which would include Sharei, the President of the company – the Agreement was intended to benefit Sharei. (See Ronay Family Limited Partnership v.

Tweed (2013) 216 Cal.App.4th 830, 839.) Alternatively, Barcelino can itself enforce the Agreement as written, which would include compelling arbitration of claims against its officers and agents.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for September 2025 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1 Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov