Casas v. Carmax Auto Superstores California CA2/1

Filed 2/26/14 Casas v. Carmax Auto Superstores California CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

MARIO CASAS, B246392

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC483637) v.

CARMAX AUTO SUPERSTORES CALIFORNIA LLC,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Steven J. Kleifield, Judge. Reversed. Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff, Christopher W. Decker and Vicky H. Lin for Defendant and Appellant. Shegerian & Associates, Carney R. Shegerian and Anthony Nguyen for Plaintiff and Respondent. __________________________________

Mario Casas filed a complaint alleging wrongful termination against CarMax Auto Superstores California, LLC (CarMax). The trial court denied CarMax’s motion to compel arbitration, and CarMax appeals. We reverse. BACKGROUND Casas filed a complaint against CarMax on April 27, 2012, alleging wrongful termination, Labor Code and Business and Professions Code violations, breach of an implied contract not to terminate employment without good cause, intentional infliction of emotional distress, negligent hiring, negligent retention, negligent supervision, and defamation. Casas alleged that CarMax hired him on August 8, 2008 and on December 17, 2010, terminated him from his position as a service consultant. CarMax cited poor results in customer service surveys, but the real reason was Casas’s “refusal to participate in and his actual discussions of [CarMax’s] illegal actions both internally and externally.” On June 29, 2012, CarMax filed a motion to compel arbitration, based on a Dispute Resolution Agreement (the arbitration agreement, or agreement) that Casas signed on July 23, 2008, as part of his application for employment, and in which he acknowledged receipt of the Dispute Resolution Rules and Procedures (DRRP) governing any arbitration, which had been in effect since December 2005. Casas opposed the motion to compel, arguing that the arbitration agreement was not a contract, and that in any event the agreement was procedurally and substantively unconscionable. After a hearing on November 8, 2012, the trial court denied CarMax’s motion to compel arbitration in an order entered on November 16, 2012, finding the arbitration agreement “‘illusory’” because the DRRP gave CarMax the right to alter or terminate the agreement and the DRRP. CarMax filed a timely notice of appeal. DISCUSSION The material facts are undisputed, and so we determine de novo the existence of an agreement to arbitrate. (Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1519 (Sparks).) Rule 19 of the DRRP provides: “CarMax may alter or terminate the Agreement and these [DRRP] on December 31 of any year upon giving thirty (30) calendar days