Jose Clemente v. Performance Contracting, Inc., et al.

on this tentative must send an email to the court at smcdept731@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party's email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

DEFENDANT PERFORMANCE CONTRACTING, INC.'S MOTION TO COMPEL ARBITRATION Moving Party: Defendant, Performance Contracting, Inc. Opposing Party: None Notice: OK

Background Facts Pleadings Plaintiff Jose Clemente sues Performance Contracting, Inc., Performance Contracting Group, Inc., Steven Lintz, and Does 1 through 20 pursuant to a March 20, 2026, Complaint alleging claims arising from Plaintiff's employment with and termination of employment by Defendants.

The record reflects that only Performance Contracting, Inc. has appeared in this action. No proof of service appears in the record showing service of summons on Performance Contracting Group, Inc. or Steven Lintz. Moreover, the record fails to show that either Performance Contracting Group, Inc. or Steven Lintz has appeared in this action.

Motion Before the Court Now before the Court is Performance Contracting, Inc.'s motion to compel arbitration of Plaintiff's claims against all Defendants into arbitration as based on the terms of a "Scaffold Master Labor Agreement" between "Southern California Association of Scaffold Contractors" and "Southwest Regional Council of Carpenters and Joiners of America in the 12 Southern California Counties." The motion is unopposed by Plaintiff despite proper service via email at RB@valiantlaw.com, an address for counsel listed in Plaintiff's Complaint.

Motion to Compel Arbitration a. Request for Judicial Notice The Court takes judicial notice of Exhibit 1 attached to the moving papers, showing the American Arbitration Association ("AAA") Employment Arbitration Rules and Mediation Procedures. (Evid. Code, Sec. 452, subd. (h), 453, subds. (a)-(b).)

b.

Legal Standard

A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by the agreement. (Code Civ. Proc., Sec. 1281.2.) Absent a viable defense to enforcement, the court must grant the motion if it determines there is an agreement to arbitrate that has not been rescinded. (See Code Civ. Proc., Sec. 1281.2; see also Cinel v. Barna (2012) 206 Cal.App.4th 1383, 1389 ["Under section 1281.2, the court shall order a matter to arbitration if it determines that there is an agreement to arbitrate and (1) the agreement has not been waived or (2) the agreement has not been revoked"].)

Even where the FAA governs the interpretation of arbitration clauses, California law governs whether an arbitration agreement has been formed in the first instance. (Baker v. Osborne Development Corp. (2008) 159 Cal.App.4th 884, 893.) The party seeking arbitration has the "burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence[.]" (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.) "Once that burden is satisfied, the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition." (Lacayo v. Cataline Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257.)

"The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination." (Ruiz v. Moss Bros. Auto Group, Inc., supra, at p. 842.) "A party required to prove something by a preponderance of the evidence 'need prove only that it is more likely to be true than not true.' [Citation.] Preponderance of the evidence means '"that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in its effect on those to whom it is addressed."' [Citations.] In other words, the term refers to 'evidence that has more convincing force than that opposed to it.' [Citations.]" (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

Discussion i. Moving Party's Burden 1. Federal Arbitration Act A motion to compel arbitration based on the FAA must show not only that that the employer engaged in interstate commerce but also that "the employment relationship involved interstate commerce." (Lane, supra, 224 Cal.App.4th at pp. 687-688.) Courts have found that where the FAA is found not to apply, the California Arbitration Act (Code Civ. Proc. Sec. 1280 et seq.) applies. (See Valencia v. Smyth (2010) 185 Cal.App.4th 153, 178.) Here, the moving papers address only whether Performance Contracting, Inc. engages in interstate commerce and not whether the employment relationship involved interstate commerce. (Motion, pp. 5-6.) Consequently, the Court proceeds under the California Arbitration Act.

2. Existence of Agreement "Parties are not required to arbitrate their disagreements unless they have agreed to do so. [Citation.] A contract to arbitrate will not be inferred absent a 'clear agreement.' [Citation.] When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation. [Citation] In California, a 'clear agreement' to arbitrate may be either express or implied in fact. [Citation.]" (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-93 [applying California law].)

The court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity. (Condee v. Longwood Management Corp., supra, 88 Cal.App.4th at p. 219.) 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, 164-165 (Gamboa), citations omitted.) However, the burden of production may shift in a three-step process. (Id. at p. 165.)

First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy, which can be met by the moving party by attaching a copy of the arbitration agreement purporting to bear the opposing party's signature. (Ibid., citations omitted.) If this burden is met, the burden shifts to the opposing party to produce evidence to challenge the authenticity of the agreement, which can be met by "testify[ing] under oath or declar[ing] under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement." (Ibid., citations omitted.)

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. (Ibid.) The burden of proving the agreement by a preponderance of the evidence remains with the moving party. (Id. at pp. 165-166, citations omitted.)

Here, to meet its initial burden of production, Performance Contracting Inc. provides a declaration from counsel: (1) representing that the "Scaffold Master Labor Agreement" is a collective bargaining agreement between "Southern California Association of Scaffold Contractors" and "Southwest Regional Council of Carpenters and Joiners of America in the 12 Southern California Counties"; (2) representing that Performance Contracting Inc. has been a member of Southern California Association of Scaffold Contractors since at least 2015; (3) representing that Plaintiff was employed by Performance Contracting Inc. between March 2015 and June 2024; and (4) representing, on information and belief, that Plaintiff was during his employment a member of the Southwest Regional Council of Carpenters and Joiners of America in the 12 Southern California Counties. (Motion, Slabicki Decl., P.P. 9, 10, 11, 13, 14 & Ex. 1.) Performance Contracting Inc. also provides a copy of the collective bargaining agreement, which includes an article setting forth grievance and arbitration provisions as the sole and exclusive means for employees to resolve disputes against Performance Contracting Inc. (Motion, Slabicki Decl., P.P. 9-10, 15, Ex. 1.)

The Court determines that this showing meets Performance Contracting Inc.'s initial showing requirement under Gamboa, which is not rebutted in any opposition by Plaintiff, for which reason Performance Contracting Inc. has met its burden of persuasion to show the existence of an agreement to arbitrate between the parties.

3. Delegation Clause "'[P]arties may agree to have an arbitrator decide not only the merits of a particular dispute but also '"'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy."' [Citation.] But '[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is "clea[r] and unmistakabl[e]" evidence that they did so.' [Citation.] This is a 'heightened standard,' and it 'pertains to the parties' manifestation of intent, not the agreement's validity.' [Citation.]" (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 879-880 (Najarro).)

However, "[c]ourts have held that 'there is no clear and unmistakable delegation to the arbitrator' to decide arbitrability where the contract 'includes a severability clause stating a court of competent jurisdiction may excise an unconscionable provision.'" (Id. at p. 880.) "In other words, pursuant to an exception ..., if a severability clause states that a court may excise unconscionable provisions, the delegation clause does not meet the heightened standard necessary for enforcement, because it is no longer clear that only the arbitrator may decide issues such as unconscionability." (Ibid. [emphasis in original]; accord.

Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891 ["'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.' [Citations.]"].)

A court must consider the validity of the delegation clause before considering the validity of the rest of the arbitration agreement. (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241, fn. 4 (Tiri).) Here, Performance Contracting Inc. argues that because the collective bargaining agreement incorporates the rules established in the AAA's Employment Arbitration Rules and Mediation Procedures, and because those rules provide that the arbitrator has the jurisdiction to determine gateway issues of arbitrability such as contract formation and defenses, the question of the agreement's validity should go to an arbitrator. (Motion, pp. 8-9.)

The Court disagrees with this position for lack of an unmistakable delegation. More specifically, nothing in the cited portion of the AAA Rules (see Motion, RJN, Ex. 1, Rule R-7 at pp. 10-11) shows that the arbitrator has the exclusive jurisdiction to rule on issues of arbitrability. Absent such an exclusionary clause in the collective bargaining agreement, there Court fails to find that there is a clear and unmistakable delegation in the combination of the collective bargaining agreement and the AAA rules.

4. Scope of Agreement "[T]he decision as to whether a contractual arbitration clause covers a particular dispute rests substantially on whether the clause in question is 'broad' or 'narrow.'" (Bono v. David (2007) 147 Cal.App.4th 1055, 1067.) "'A "broad" clause includes those using language such as "any claim arising from or related to this agreement"' [Citation] or 'arising in connection with the [a]greement' [Citation.]" (Rice v. Downs (2016) 248 Cal.App.4th 175, 186 [italics omitted].) "But clauses requiring arbitration of a claim, dispute, or controversy 'arising from' or 'arising out of' an agreement, i.e., excluding language such as 'relating to this agreement' or 'in connection with this agreement,' are 'generally considered to be more limited in scope than would be, for example, a clause agreeing to arbitrate "'any controversy ... arising out of or relating to this agreement[.]'" [Citations.]" (Id. at p. 186-87 [italics omitted].)

Moving to the remainder of Performance Contracting Inc.'s burden, a review of the relevant article of the collective bargaining agreement shows that only some of Plaintiff's claims are within the scope therein. Specifically, the agreement contains within its scope claims under the Labor Code (Motion, Slabicki Decl., Ex. 1, art. XI, Sec. 7 at p. 15), the Fair Employment and Housing Act (id. at Sec. 13, p. 17), and from "related or similar claims (including but not limited to those for wrongful termination in violation of public policy, intentional infliction of emotional distress, violation of 42 U.S.C. section 1981, and retaliation in violation of Labor Code section 1102.5)" (ibid.).

However, it is not clear to the Court from the terms of the collective bargaining agreement whether the agreement encompasses the claims against the two Defendants who have not appeared in this case: Performance Contracting Group, Inc., the parent of Performance Contracting Inc. (Motion, Slabicki Decl., P. 5); and Steven Lintz, Industrial Superintendent at Performance Contracting Inc. and Plaintiff's direct supervisor (Complaint, P. 5). Indeed, while the agreement states that it covers "all employee disputes" related to the Labor Code (Motion, Slabicki Decl., Ex. 1, art.

XI, Sec. 7 at p. 15) and "any and all claims" related to the FEHA and further related claims such as wrongful termination (id. at Sec. 13, p. 17), the agreement limits its scope beyond Performance Contracting Inc. to parents, subsidiaries, and related entities, which are only mentioned in relation to FEHA claims and claims related to FEHA claims such as wrongful termination, with no mention of agents or employees such as Steven Lintz.

Consequently, the Court determines that the scope of the collective bargaining agreement (1) encompasses all claims against Performance Contracting Inc., (2) only encompasses causes of action one through eight as alleged against Performance Contracting Group, Inc., and (3) does not encompass any claims against Defendant Steven Lintz.

5. Conclusion, Defendant's Burden

Based on the above determinations, the Court concludes that Performance Contracting Inc. has carried its burden to show that claims alleged against it in the Complaint are encompassed by an agreement to arbitrate between the parties and that only causes of action one through eight as alleged against Performance Contracting Group, Inc. are encompassed by that agreement.

ii. Opposing Party's Burden Having carried its burden to show that an agreement to arbitrate Plaintiff's claims exists between the parties, as described and limited above, the burden shifts to Plaintiff to show valid defenses, which Plaintiff has failed to do by way of filing no opposition to the present motion despite proper service thereof.

d.

Conclusion

Defendant Performance Contracting Inc.'s motion to compel arbitration is accordingly GRANTED, in part, as described and limited above. As requested in the moving papers, the Court STAYS these proceedings, including as to the claims not ordered into arbitration. (Code Civ. Proc., Sec. 1281.4.) Defendant Performance Contracting Inc.is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at smcdept731@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party's email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely. | Home -->)" -->