The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants Cintas Corporation, Cintas Corporate Services, Inc., Cintas Coporation No. 2, Paul Primerano, Joe Staron and Elizabeth Santilli's*fn1 (collectively, "defendants") motion to dismiss, or alternatively stay, this action pending arbitration.*fn2 Defendants move for an order compelling plaintiff Benjamin Corin ("plaintiff") to submit his claims to arbitration pursuant to the terms of an Employment Agreement plaintiff entered with defendant companies upon the commencement of his employment.*fn3 In this action, plaintiff alleges various claims relating to his employment with defendants and the ultimate termination of his employment by defendants.*fn4
Defendants contend all of plaintiff's claims are subject to the arbitration provision contained in plaintiff's Employment Agreement.
Plaintiff opposes the motion, arguing in the first instance, that defendants have waived their right to compel arbitration by refusing to meet and confer in good faith with plaintiff before demanding arbitration; plaintiff maintains that the Employment Agreement specifically requires that a party meet and confer to attempt to resolve any disputes informally before demanding arbitration, and defendants did not do so. Alternatively, plaintiff argues (1) the Employment Agreement's arbitration clause is unenforceable as procedurally and substantively unconscionable; (2) the individual defendants, as non-signatories to the Agreement, cannot compel arbitration; and (3) certain of plaintiff's claims are not covered by the arbitration provision.
For the reasons set forth below, the court DENIES defendants' motion on the ground the Agreement's arbitration provision is procedurally and substantively unconscionable. Because the court reaches this finding, it need not consider plaintiff's alternative arguments with respect to the individual defendants' ability to compel arbitration and the scope of the arbitration clause.
Defendant Cintas Corporation*fn5 ("Cintas") provides uniforms and other supplies to businesses, persons and organizations throughout California and the United States. (Compl., ¶ 9.) Plaintiff was employed by Cintas as a Uniform Sales Associate from approximately January 3, 2007 to November 21, 2008, when he was terminated by Cintas. (Id. at ¶s 8, 20-21.) Plaintiff's job duties included outside and inside sales and solicitation of customers and accounts, involving the rental and sales of uniforms and accessories to large and small businesses located in Northern California. (Id. at ¶ 13.)
On the first day of his employment, plaintiff was asked to sign the subject Employment Agreement, a standardized Cintas' contract. (Corin Decl., filed Nov. 24, 2009, ¶s 11-14.) Said Agreement contained an arbitration clause providing that the parties agreed that should any dispute or difference arise between them relating to plaintiff's employment with defendants, "either party [agrees] to pursue [such] a claim against the other party . . . through impartial and confidential arbitration," conducted pursuant to the Federal Arbitration Act ("FAA") and other relevant federal and state laws. (Compl., Ex. A at § 8.) Plaintiff states he was presented with the Agreement among a stack of documents approximately one inch thick, which included tax and health and safety related documents. (Corin Decl. at ¶s 5-6.) Plaintiff attests that he understood the contract was a "take it or leave it" document in that he had no choice but to either the accept the contract as written by Cintas or not take the job. (Id. at ¶ 14.) Plaintiff states he was told that he had to sign the documents before his first day of orientation and training could proceed. (Id. at ¶ 11.)
Plaintiff asserts that Cintas' Human Resources Manager, Jacqueline Mack ("Mack"), who provided him the documents, was not available to answer questions, and she did not point out the arbitration provision or otherwise explain the documents to plaintiff. (Id. at ¶ 8.) Mack disputes plaintiff's testimony, stating in her declaration filed in support of the motion, that she provided plaintiff time to review the Agreement and asked him whether he had any questions and he responded that he did not. (Mack Decl, filed Dec. 4, 2009, ¶ 3.) Ultimately, plaintiff signed the documents and submitted them to Mack; plaintiff states he never received a copy of the documents, including the Employment Agreement. (Corin Decl., ¶ 15.)
Prior to November 19, 2008, plaintiff alleges he made various demands to Cintas to pay certain wages, commissions and bonuses which plaintiff claimed he was legally entitled. (Compl., ¶s 18-20.) Plaintiff alleges he was terminated by defendants in retaliation for his assertion of the legal right to said monies. (Id. at ¶ 21.)
Plaintiff retained the law firm of Mastagni, Holstedt, Amick, Miller & Johnson to represent him. (Carr Decl., filed Nov. 24, 2009, ¶ 2.) On March 5, 2009, plaintiff's counsel wrote to Cintas' Chief Executive Officer and Human Resources Department outlining plaintiff's claims against defendants and requesting that the parties meet and confer to facilitate an immediate resolution of plaintiff's claims. (Id. at ¶ 4, Ex. A.) Cintas did not respond in writing, but plaintiff's counsel subsequently received a telephone message from a Mr. Max Langenkamp who indicated he was calling with respect to plaintiff's claims. (Id. at ¶ 5.) On March 25, 2009, plaintiff's counsel spoke with Mr. Langenkamp, who is Senior Legal Counsel for Cintas. (Id. at ¶ 6.) During that conversation, Mr. Lagenkamp agreed to provide plaintiff's counsel with copies of plaintiff's wages, accounts and other records relating to plaintiff's earnings and employment with Cintas. However, Cintas did not subsequently provide the documents. (Id. at ¶ 7.)
On June 2, 2009, plaintiff's counsel sent a follow-up letter to Mr. Lagenkamp requesting that Cintas meet and confer in good faith with respect to plaintiff's claims and produce the documents promised on March 25. (Id. at ¶ 8, Ex. B.) By separate letter of June 2, plaintiff's counsel also notified Cintas of the "Right to Sue Notice" plaintiff received with respect to his complaint filed with the California Fair Employment and Housing Department ("DFEH"). (Id. at ¶ 10, Ex. C.) Cintas did not respond to either letter. (Id. at ¶s 9-10.) On August 4, 2009, plaintiff's counsel sent a written request to Cintas for plaintiff's personnel file, payroll records and accounting records, relating to his wages, commissions, salary and employment at Cintas. (Id. at ¶ 11, Ex. D.) Also on August 4, plaintiff's counsel sent copies of plaintiff's Notice of Private Attorney General Act Claim filed that day with the California Division of Occupational Safety and Health, Labor and Workforce Development Agency. (Id. at ¶ 12, Ex. F.) Plaintiff thereafter received permission to act as a private attorney general under the Act. (Id. at ¶ 12.)
On August 25, 2009, plaintiff filed the instant complaint. On August 26, 2009, defendants' counsel sent plaintiff's counsel a letter, enclosing plaintiff's personnel file. (Id. at Ex. E.) Thereafter, on September 2, 2009, defendants' counsel sent a letter to plaintiff demanding that plaintiff submit his claims to arbitration pursuant to the terms of the Employment Agreement. (Id. at ¶ 16, Ex. H.) Plaintiff's counsel responded that before any such demand could be made, the Employment Agreement required that the parties meet and confer in good faith. (Id. at ¶ 17, Ex. I.) Plaintiff's counsel cited the Employment Agreement, which provides in pertinent part:
Should any dispute or difference arise between Employee and Employer . . . the parties will confer and attempt in good faith to resolve promptly such dispute or difference . . . If any dispute or difference remains unresolved after the parties have conferred in good faith, either party . . . will submit to the other party a written request to have such claim, dispute or difference resolved through impartial and confidential arbitration. (Id. at Ex. G, Employment Agreement, § 8.) Plaintiff's counsel reiterated that he had requested defendants meet and confer on the issues but defendants ignored the ...