Preview
Law Office of Richard J. Vaznaugh Mitchell Silbersberg & Knupp LLP
Attn: Kwan, Jason J Attn: Gaut, Kevin E
505 Sansome Street 11377 W Olympic Blvd
Suite 850 Los Angeles, CA 90064-1683
San Francisco, CA 94111
Superior Court of California, County of Alameda
Rene C. Davidson Alameda County Courthouse
Gatlin No. RG19015524
Plaintiff/Petitioner(s)
Order
VS.
Motion to Compel (Motion)
Anheuser-Busch, LLC Denied
Defendant/Respondent(s)
(Abbreviated Title)
The Motion to Compel (Motion) was set for hearing on 03/13/2020 at 11:00 AM in Department 21
before the Honorable Winifred Y. Smith. The Tentative Ruling was published and was contested.
The matter was argued and submitted, and good cause appearing therefore,
IT IS HEREBY ORDERED THAT:
The tentative ruling is affirmed as follows: The Motion of Defendant Anheuser -Busch to compel
plaintiffGatlin to arbitrate his claims is DENIED.
FACTS
"The petitioner bears the burden of proving the existence of a valid arbitration agreement by a
preponderance ofthe evidence, ...The trialcourt sitsas the trierof 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.(2014) 232
Cal. App.4th 836, 842.)
On or about 11/1/15, Anheuser-Busch acquired the assets ofHorizon Beverage and hired the employees
of Horizon Beverage. (Bodisch Dec., para 3, 5)
On 9/14/15, Gatlin read and acknowledged a statement on a computer job application thatAnheuser-
Busch requires itsemployees to agree to the Dispute Resolution Program ("DRP"). (Gatlin Dec., para
4; Bodisch Reply Dec., Exh A) The computer job application did not attach or have a link to the DRP.
(Gatlin Dec., para 4)
On 10/14/15, Gatlin was presented with and signed atwo page offer letterthat states Anheuser -Busch
has the DRP and that he agreed to the DRP.
The letterstates that the DRP does not apply if thereisan applicable collective bargaining agreement.
As of 10/14/15, Gatlin was a member of the Teamsters Union and thought the union contract would
continue. (Gatlin Dec., para 7) (See also Bodisch Depo at 141-143 [Anheuser-Busch used a
standardized letter].)
The letterstates "The DRP materials were included inyour application packet." (Bodisch Dec., para 8,
Exh A) Plaintiff states he did not get acopy of the DRP. (Gatlin Dec., para 5.) Plaintiff states there at
Order
the meeting on 10/14/15 was no discussion of arbitration orthe DRP. (Gatlin Dec., para 10.)
At deposition, Anheuser-Busch's relevant witness stated she could not recallwhether she was inGatlin's
offer lettermeeting and did not know ifGatlin's manager actually handed the offer letterto Gatlin.
(Bodisch Depo at 86-87, 89.) She testifiedthat the offer lettersdid not have anything attached to them.
(Bodisch Depo at 108.) She testified thatthere isno written record that the DRP was transmitted to
any of the Sales Reps in Oakland. (Bodisch Depo at 168.)
The Anheuser-Busch Director on Integration states that standard procedure was to distribute DRPs to
new employees. (Balakrishnan Reply Dec., para 5-9.)
On 10/29/15, Anheuser -Busch sent Gatlin an email with a copy of the offer and acceptance letterthat
repeated the statements about the DRP. Anheuser-Busch's relevant witness statesthat the email
attached a copy of the DRP. (Bodisch Reply Dec., para 9.) (Sathyanarayan Reply Dec, para 3.)
Plaintiff statesthat the email did not attach a copy of the DRP. (Gatlin Dec., para 11.)
Having reviewed and weighed the above evidence, the court makes the following factual findings: (1) on
9/14/15, Gatlin filledout a computer job application but the application did not attach or have a link to
the DRP; (2) on 10/14/15, Gatlin was presented with and signed a two page offer letter;(3) on
10/14/15, Anheuser-Busch did not orally inform Gatlin of the general terms of the DRP or give Gatlin a
copy of the DRP; (4) the offer letterwas ambiguous about whether the DRP would apply to persons
who were members of an applicable collective bargaining agreement when they signed the letter;and (5)
on 10/29/15, the Anheuser-Busch email to Gatlin did not attach a copy of the DRP.
The specific evidence related to Gatlin is more compelling than the general evidence that the Anheuser-
Busch standard procedure was to distribute DRPs to new employees. Anheuser-Busch did not produce
any signed or initialed copy ofthe DRP affirming that itprovided a copy toGatlin.
LEGAL STANDARDS ON ARBITRATION GENERALLY
When asked to enforce an agreement to arbitrate,the Court must ordinarily answer only two "gateway"
questions: (1) whether the parties had agreed to arbitrate disputes, per the normal rules of contract, and
(2) whether the parties’ current dispute lieswithin the scope of the agreement to arbitrate. (Omar v.
Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960; see 9 U.S.C. §4 ["Ifthe making of the
arbitration agreement or the failure, neglect, or refusal to perform the same be inissue, the court shall
proceed summarily to the trialthereof."].)
"California law ...favors enforcement of valid arbitration agreements." (Armendariz v.Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires
courts to enforce arbitration clauses. (CCP 1280 et seq.)
THE COURT WILL DECIDE WHETHER THE ARBITRATION AGREEMENT IS
ENFORCEABLE.
The court will determine issues ofarbitrability on the fact of this case.
As a general principle, "theenforceability of an arbitration agreement is ordinarily to be determined by
the court. The parties may agree in the arbitration provision, however, that the enforceability issue will
be delegated to the arbitrator. ...To establish thisexception, itmust be shown by "clear and
unmistakable" evidence that the parties intended to delegate the issue to the arbitrator. ...The "clear and
unmistakable" test reflectsa "heightened standard" of proof. ..,That isbecause the question of who
would decide the unconscionability of an arbitration provision is not one that the parties would likely
focus upon in contracting, and the default expectancy isthat the court would decide the matter."
(Ajamean v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781-782) (See also Nielsen Contracting,
Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096; Aanderud v.Superior Court (2017) 13
Cal. App.5th 880, 892.)
Turning to the fact of this case, the DRP at 13.1 states "The Arbitrator shall have exclusive authority to
resolve any dispute relatingto the applicability, enforceability or formation of the DRP, including any
claim that allor part of the DRP is invalid or unenforceable."
Order
The court finds that the communications to Gatlin did not include or attach the DRP and therefore did
not have clear and unmistakable language that an arbitrator will decide issue of arbitrability. Even if
the DRP had been attached, the arbitrability provision ison page 16 and has nothing that draws any
attention to the paragraph. The court willdecide arbitrability.
CONTRACT FORMATION.
Anheuser-Busch has not met itsburden of demonstrating that there was a meeting of the minds between
itand Gatlin that disputes would be resolved under the DRP. No party isrequired to arbitrate a dispute
"unless he or she has expressly agreed to do so by entering into a valid and enforceable written contract
with the party who seeks arbitration." (Grey v. American Management Services (2012) 204
Cal. App.4th 803, 808.)
There was no contract formation regarding the DRP on 9/14/15 when Gatlin filledout the computer job
application both because itwas just an application and not a contract and also because the application
did not attach orhave a link to the DRP.
There was no contract formation regarding the DRP on 10/14/15 when Gatlin signed the offer letter
because Anheuser-Busch did not orally inform Gatlin of the general terms of the DRP or give Gatlin a
copy of the DRP. In addition, the offerletter was ambiguous about whether the DRP would apply to
persons who were members of an applicable collective bargaining agreement when they signed the letter.
There was no contract formation regarding the DRP on 10/29/15, when Anheuser-Busch sent Gatlin an
email with a copy of the letterboth because Anheuser-Busch has not demonstrated that the DRP was
attached.
CONCLUSION
The Motion ofDefendant Anheuser-Busch to compel arbitration isDENIED.
Facsimile
Dated: 03/13/2020 Php d 4 orth?
Judge Winifred Y. Smith
Order
SHORT TITLE: CASE NUMBER:
Gatlin VS Anheuser-Busch, LLC RG19015524
ADDITIONAL ADDRESSEES
Foster Employment Law
Attn: Wilbur, Michael E.
3000 Lakeshore Avenue
Oakland, CA 94610
Order
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Law Office of Richard J. Vaznaugh Mitchell Silbersberg & Knupp LLP Attn: Kwan, Jason J Attn: Gaut, Kevin E 505 Sansome Street 11377 W Olympic Blvd Suite 850 Los Angeles, CA 90064-1683 San Francisco, CA 94111 Superior Court of California, County of Alameda Rene C. Davidson Alameda County Courthouse Gatlin No. RG19015524 Plaintiff/Petitioner(s) Order VS. Motion to Compel (Motion) Anheuser-Busch, LLC Denied Defendant/Respondent(s) (Abbreviated Title) The Motion to Compel (Motion) was set for hearing on 03/13/2020 at 11:00 AM in Department 21 before the Honorable Winifred Y. Smith. The Tentative Ruling was published and was contested. The matter was argued and submitted, and good cause appearing therefore, IT IS HEREBY ORDERED THAT: The tentative ruling is affirmed as follows: The Motion of Defendant Anheuser -Busch to compel plaintiffGatlin to arbitrate his claims is DENIED. FACTS "The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance ofthe evidence, ...The trialcourt sitsas the trierof 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.(2014) 232 Cal. App.4th 836, 842.) On or about 11/1/15, Anheuser-Busch acquired the assets ofHorizon Beverage and hired the employees of Horizon Beverage. (Bodisch Dec., para 3, 5) On 9/14/15, Gatlin read and acknowledged a statement on a computer job application thatAnheuser- Busch requires itsemployees to agree to the Dispute Resolution Program ("DRP"). (Gatlin Dec., para 4; Bodisch Reply Dec., Exh A) The computer job application did not attach or have a link to the DRP. (Gatlin Dec., para 4) On 10/14/15, Gatlin was presented with and signed atwo page offer letterthat states Anheuser -Busch has the DRP and that he agreed to the DRP. The letterstates that the DRP does not apply if thereisan applicable collective bargaining agreement. As of 10/14/15, Gatlin was a member of the Teamsters Union and thought the union contract would continue. (Gatlin Dec., para 7) (See also Bodisch Depo at 141-143 [Anheuser-Busch used a standardized letter].) The letterstates "The DRP materials were included inyour application packet." (Bodisch Dec., para 8, Exh A) Plaintiff states he did not get acopy of the DRP. (Gatlin Dec., para 5.) Plaintiff states there at Order the meeting on 10/14/15 was no discussion of arbitration orthe DRP. (Gatlin Dec., para 10.) At deposition, Anheuser-Busch's relevant witness stated she could not recallwhether she was inGatlin's offer lettermeeting and did not know ifGatlin's manager actually handed the offer letterto Gatlin. (Bodisch Depo at 86-87, 89.) She testifiedthat the offer lettersdid not have anything attached to them. (Bodisch Depo at 108.) She testified thatthere isno written record that the DRP was transmitted to any of the Sales Reps in Oakland. (Bodisch Depo at 168.) The Anheuser-Busch Director on Integration states that standard procedure was to distribute DRPs to new employees. (Balakrishnan Reply Dec., para 5-9.) On 10/29/15, Anheuser -Busch sent Gatlin an email with a copy of the offer and acceptance letterthat repeated the statements about the DRP. Anheuser-Busch's relevant witness statesthat the email attached a copy of the DRP. (Bodisch Reply Dec., para 9.) (Sathyanarayan Reply Dec, para 3.) Plaintiff statesthat the email did not attach a copy of the DRP. (Gatlin Dec., para 11.) Having reviewed and weighed the above evidence, the court makes the following factual findings: (1) on 9/14/15, Gatlin filledout a computer job application but the application did not attach or have a link to the DRP; (2) on 10/14/15, Gatlin was presented with and signed a two page offer letter;(3) on 10/14/15, Anheuser-Busch did not orally inform Gatlin of the general terms of the DRP or give Gatlin a copy of the DRP; (4) the offer letterwas ambiguous about whether the DRP would apply to persons who were members of an applicable collective bargaining agreement when they signed the letter;and (5) on 10/29/15, the Anheuser-Busch email to Gatlin did not attach a copy of the DRP. The specific evidence related to Gatlin is more compelling than the general evidence that the Anheuser- Busch standard procedure was to distribute DRPs to new employees. Anheuser-Busch did not produce any signed or initialed copy ofthe DRP affirming that itprovided a copy toGatlin. LEGAL STANDARDS ON ARBITRATION GENERALLY When asked to enforce an agreement to arbitrate,the Court must ordinarily answer only two "gateway" questions: (1) whether the parties had agreed to arbitrate disputes, per the normal rules of contract, and (2) whether the parties’ current dispute lieswithin the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960; see 9 U.S.C. §4 ["Ifthe making of the arbitration agreement or the failure, neglect, or refusal to perform the same be inissue, the court shall proceed summarily to the trialthereof."].) "California law ...favors enforcement of valid arbitration agreements." (Armendariz v.Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) The California Arbitration Act requires courts to enforce arbitration clauses. (CCP 1280 et seq.) THE COURT WILL DECIDE WHETHER THE ARBITRATION AGREEMENT IS ENFORCEABLE. The court will determine issues ofarbitrability on the fact of this case. As a general principle, "theenforceability of an arbitration agreement is ordinarily to be determined by the court. The parties may agree in the arbitration provision, however, that the enforceability issue will be delegated to the arbitrator. ...To establish thisexception, itmust be shown by "clear and unmistakable" evidence that the parties intended to delegate the issue to the arbitrator. ...The "clear and unmistakable" test reflectsa "heightened standard" of proof. ..,That isbecause the question of who would decide the unconscionability of an arbitration provision is not one that the parties would likely focus upon in contracting, and the default expectancy isthat the court would decide the matter." (Ajamean v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781-782) (See also Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096; Aanderud v.Superior Court (2017) 13 Cal. App.5th 880, 892.) Turning to the fact of this case, the DRP at 13.1 states "The Arbitrator shall have exclusive authority to resolve any dispute relatingto the applicability, enforceability or formation of the DRP, including any claim that allor part of the DRP is invalid or unenforceable." Order The court finds that the communications to Gatlin did not include or attach the DRP and therefore did not have clear and unmistakable language that an arbitrator will decide issue of arbitrability. Even if the DRP had been attached, the arbitrability provision ison page 16 and has nothing that draws any attention to the paragraph. The court willdecide arbitrability. CONTRACT FORMATION. Anheuser-Busch has not met itsburden of demonstrating that there was a meeting of the minds between itand Gatlin that disputes would be resolved under the DRP. No party isrequired to arbitrate a dispute "unless he or she has expressly agreed to do so by entering into a valid and enforceable written contract with the party who seeks arbitration." (Grey v. American Management Services (2012) 204 Cal. App.4th 803, 808.) There was no contract formation regarding the DRP on 9/14/15 when Gatlin filledout the computer job application both because itwas just an application and not a contract and also because the application did not attach orhave a link to the DRP. There was no contract formation regarding the DRP on 10/14/15 when Gatlin signed the offer letter because Anheuser-Busch did not orally inform Gatlin of the general terms of the DRP or give Gatlin a copy of the DRP. In addition, the offerletter was ambiguous about whether the DRP would apply to persons who were members of an applicable collective bargaining agreement when they signed the letter. There was no contract formation regarding the DRP on 10/29/15, when Anheuser-Busch sent Gatlin an email with a copy of the letterboth because Anheuser-Busch has not demonstrated that the DRP was attached. CONCLUSION The Motion ofDefendant Anheuser-Busch to compel arbitration isDENIED. Facsimile Dated: 03/13/2020 Php d 4 orth? Judge Winifred Y. Smith Order SHORT TITLE: CASE NUMBER: Gatlin VS Anheuser-Busch, LLC RG19015524 ADDITIONAL ADDRESSEES Foster Employment Law Attn: Wilbur, Michael E. 3000 Lakeshore Avenue Oakland, CA 94610 Order