Kevin Keshawn Moore, Jr. v. IPS Nationwide, Inc.

pp. 11-12 [arguing that "Applied Staff is charged with knowledge of its own business records" and that the facts evince actual or constructive notice]); and * Applied Staff fails to show that Plaintiff's purported delay in prosecution prevented Applied Staff from finding the arbitration agreement in its files - and moving to compel arbitration - sooner.

Similar analysis applies to CR&R. Although its answer asserts an arbitration-based affirmative defense (see CR&R's Answer, p. 4), CR&R waited more than a year to seek to compel arbitration against Plaintiff. Moreover, CR&R's declarants fail to demonstrate that CR&R could not have discovered Applied Staff's agreement earlier (the decision to plead an arbitration-based affirmative defense tends to suggest that CR&R had reason to believe that Applied Staff had/has an arbitration agreement that CR&R would be able to invoke). (See Kalusa Decl., P. 6; see also Bell Decl., P. 2.) The Court finds CR&R's delay inconsistent with the right to compel arbitration.

Which bring the Court to ground (2) - wrong arbitration agreement. Applied Staff moves under an English-version arbitration agreement signed in October 2021 (see Ramirez Decl., Ex. A) but admits that Plaintiff signed a Spanish-version arbitration agreement in September 2022. (See id. at Ex. B.) Presumably, the Spanish version supersedes the English version. To be sure, Applied Staff fails to prove either that the English version is the operative version or that the English version and the Spanish have equivalent terms. (Cf.

Opposition, pp. 12-13 [pointing out potential differences between the English version and the Spanish version]; see also Reply, p. 7 [seemingly conceding that the versions differ].) Indeed, Applied Staff did not submit a certified translation from a certified translator. (See Reply, p. 7 n.4 [acknowledging that Applied Staff did not provide a certified translation by the reply's due date].) These facts render Applied Staff's burden to show an agreement to arbitrate unsatisfied. CR&R's burden is unsatisfied for the same reason.

Therefore, the motion to compel and the joinder are denied.

(25STCV27234) Tentative Ruling Re: Supplemental Briefs Re: Motion to Compel Arbitration Date: 9/1/26 Time: 11:00 am Moving Party: IPS Nationwide, Inc. ("IPS" or "Defendant") Opposing Party: Kevin Keshawn Moore, Jr. ("Plaintiff")

Department: 11 Judge: Bruce G. Iwasaki ________________________________________________________________________ TENTATIVE RULING Defendant's motion to compel arbitration is denied.

BACKGROUND Plaintiff used to work for IPS as a security guard. He alleges that IPS subjected him and other current and former employees to numerous wage-and-hour violations. On August 13, 2026, IPS's motion to compel arbitration came on for hearing. The Court ended up continuing the matter and ordering supplemental briefing regarding Cluck v. Geo Secure Services, LLC (2026) 122 Cal.App.5 th 249, an August 3, 2026 decision from the Fourth District Court of Appeal. The parties filed and the court has considered supplemental briefs.

DISCUSSION The unresolved issue concerns the application and effect of Civil Code section 1642. Plaintiff claims Defendant included among the onboarding documents two confidentiality agreements called the " EMPLOYEE CONFIDENTIALITY AGREEMENT " ("ECA") and the " MUTUAL CONFIDENTIALITY AGREEMENT " ("MCA"). (Szmanda Decl., Ex. 1, pp. IPS 000020, IPS 000097, bolding and capitalizing in original, underlining deleted.) He cites section 1642, arguing that the IPS agreement, the ECA, and the MCA must be construed as one contract, and he insists that so viewed, they are unconscionable.

Tentatively, the Court disagreed. The Court reviewed three cases cited by Plaintiff - Alberto v. Cambrian Homecare (2023) 91 Cal.App.5 th 482, Silva v. Cross Country Healthcare, Inc. (2025) 111 Cal.App.5 th 1311, and Gurganus v. IGS Solutions LLC (2025) 115 Cal.App.5 th 327 - and found that the IPS agreement should be construed on its own rather than jointly with the ECA and the MCA because: * Each agreement has supersession and integration clauses. (See Espadas Decl., Ex. 1, p. 4 ["This Agreement sets forth the final agreement of the parties with respect to its subject matter.

It supersedes all prior negotiations, representations or agreements, whether written or oral, pertaining to arbitration of claims."]; see also Szmanda Decl., Ex. 1, p. IPS 000022, Sec. 13 [ECA: "Except as otherwise indicated herein, this Agreement constitutes the entire agreement between the Company and Employee concerning the subject matter herein and supersedes all prior agreements and may be amended only by an instrument in writing."]; id. at Ex. 1, p. IPS 000099, Sec. 9 [MCA: "This Agreement constitutes the entire understanding between the parties hereto as to the Confidential Information and supersedes all prior understandings, whether oral or written, between them relating hereto."].) * Each agreement defines "Company"/"Employer" differently. (See Espadas Decl., Ex. 1, p. 1 [defining "Company" as "IPS, Inc." - i.e., Defendant's dba]; see also Szmanda Decl., Ex. 1, p.

IPS 000020 [defining "Company"/"Employer" as "IPS Security, Inc." - i.e., an IPS entity not named in the complaint]; id. at Ex. 1, p. IPS 000097 [stating that the MCA is between "IPS Security" and "Company[;]" defining "IPS Security" as "IPS Security, Inc." - again, an IPS entity not named in the complaint - and "its owners, employees, agents, affiliates, and subsidiaries[;]" and failing to define "Company"].) [1]

Nevertheless, the Court found it appropriate to continue the hearing to give the parties and the Court time to address the Cluck opinion. Cluck involved similar facts. The plaintiff signed an arbitration agreement and a confidentiality agreement on the same day. The arbitration agreement obligated the parties to arbitrate employment-related disputes. The confidentiality agreement "create[d] an exception for [the defendant's] confidentiality-or-competition-type claims[,]" calling for the claims to be litigated in court in Florida. (Cluck, supra, 122 Cal.App.5 th 249, at pp. *1, *6.) Analyzing Alberto and Silva, the Fourth District held that the agreements should be read together because they both "pertain[ed] to the resolution of disputes arising from [the plaintiff's] employment." (Id. at *6.)

The Cluck court also rejected the defendant's focus on the integration clauses in the agreements: GEO suggests that we should not construe the agreements together under section 1642 because each contains an integration clause. Indeed, the Arbitration Agreement provides that it "replaces all prior agreements regarding the arbitration of disputes and is the full and complete agreement relating to the formal resolution of disputes covered by this Agreement." And the Confidentiality Agreement states: "Except as otherwise provided herein, the terms contained in this document are the entire agreement between the parties concerning the matters covered in it.

The parties are not relying upon any representations, understandings or agreements outside of this Agreement in making the decision to enter into it. This Agreement supersedes prior agreements between me and the Company regarding the subject matter addressed in this Agreement .... And, this Agreement supplements and does not replace or modify confidentiality, invention assignment, and restrictive covenant provisions that may be contained in ... other agreements between the parties." The mere existence of an integration clause, however, does not necessarily preclude us from considering whether two agreements should be construed together under section 1642. (R.W.L.

Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1031, 226 Cal.Rptr.3d 677.) The integration clauses in this case do not clearly indicate the agreements should be read independently. Neither the Arbitration Agreement nor the Confidentiality Agreement specifically references the other. (Cf. Subaru of America, Inc. v. Putnam Automotive, Inc. (2021) 60 Cal.App.5th 829, 840-841, 275 Cal.Rptr.3d 120 [applying Sec. 1642 not warranted where one agreement expressly states it does not modify a second agreement and " 'is a separate, negotiated contract apart from' " the second (italics omitted)].)

And where two agreements are signed at the same time, both covering dispute resolution and both containing an integration clause, it is not clear which is controlling. (Id. at *7.)

Cluck is analogous to the case at hand. The Court finds that Cluck requires that the IPS agreement, the ECA, and the MCA to be read together. The issue turns to Plaintiff's contention that the arbitration agreement, read together with the confidentiality agreements, renders the agreement unconscionable. The court had previously noted a low level of procedural unconscionability because it was a contract of adhesion. Viewing the agreements together demonstrates how bargaining power with surprise agreements increases the unconscionability in the formation of the parties' agreement.

With respect to substantive unconscionability, the Cluck court is instructive. When the IPS, ECA, and MCA agreements are "taken together" under Civil Code section 1642 the focus of the unconscionability analysis widens. The Fourth District determined that there was a high degree of substantive unconscionability because the overall agreement - the arbitration agreement and the confidentiality agreement combined - provided the defendant an "unfairly one-sided" benefit of "pursu[ing] its most likely claims in court." (Cluck at p. *8.)

This one-sidedness is readily apparent here. Combining the IPS agreement, the ECA, and the MCA generates an equivalent "unfairly one-sided" benefit. (Ibid.; see also Szmanda Decl., Ex. 1, p. IPS 000021, Sec. 8 [ECA: "Employee hereby further acknowledges that in the event Employee breaches this agreement in any manner, in addition to immediate termination of Employee's relationship with Company, Company shall have the right to initiate action for damages resulting from said breach by Employee and equitable relief including, but not limited to, a restraining order and/or injunctive relief."]; id. at Ex. 1, p. 3, Sec. 13 [ECA: "Any and all actions or proceedings arising from or relating to this Agreement shall be instituted only in any state or federal court sitting in Orange County or San Diego County, California, and by execution and delivery of this Agreement, the parties irrevocably and unconditionally subject to the jurisdiction (both subject matter and personal) of each such court and irrevocably and unconditionally waive: (a) any objection that the parties might now or hereafter have to the venue of any of such court; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum."]; id. at Ex. 1, p.

IPS 000099, Sec. 8 [MCA: "The Parties agree that a violation of this Agreement would cause immediate and irreparable harm to the Disclosing Party and shall, in addition to all other remedies, entitle the Disclosing Party to seek injunctive relief without a requirement that Disclosing Party prove irreparable harm or provide the posting of a bond. In the event a dispute arises under this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees and costs in addition to all other remedies available to the prevailing Party under this Agreement, at law or otherwise."]; id. at Ex. 1, p. 000099, Sec. 9 [MCA: "The Parties expressly agree and acknowledge that any disputes relating to this Agreement will be exclusively adjudicated by federal and state courts located in San Diego, California, USA."].)

The court concludes that these provisions epitomize harsh and one-sided results. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) The arbitration agreement evinces a high degree of substantive unconscionability, which, with the modest degree of procedural unconscionability, invalidates the agreement.

The final question is whether the Court can use severance to remedy the unconscionability problem. The answer is no. In Cluck, the arbitration agreement contained an opt-out provision, yet the Fourth District still found severance unavailable because the opt-out procedure was cumbersome, and the one-sidedness of the confidentiality agreement "str[uck] at the heart of the overall agreement between the parties." (Cluck, supra, 2026 WL 2224706, at *10.) The Fourth District reasoned: "[E]ven assuming the unconscionable provisions could be severed from the agreements, severance would not be in the interest of justice[.]" (Ibid.) The IPS agreement here lacks an opt-out provision, so Cluck opinion's reasoning is all the more fitting here. Consequently, the motion to compel arbitration is denied.

[1] The plain words of the MCA suggest that Plaintiff is not a party to the agreement. | Home -->)" -->