(Santa Clara County Super. Ct. No. CV175280)
The opinion of the court was delivered by: Premo, Acting P.J.
; pub. order 7/12/11 (see end of opn.)
Petitioner Sharon Elizabeth Zullo sued her employer, real party in interest Inland Valley Publishing Co. (Inland) for wrongful termination in violation of California's Fair Employment and Housing Act (Gov. Code, § 12920 et seq. (FEHA)). The superior court granted Inland's petition to compel arbitration and stayed the civil proceedings. Petitioner challenged that ruling by way of a petition for writ of mandate. We temporarily stayed the arbitration and issued an order to show cause why relief should not be granted. We now grant the petition and issue the writ.
Petitioner's complaint states that she began working for Inland, the publisher of a weekly newspaper, in or around 2004. She was promoted to "Account Executive" on September 1, 2009. Her salary was $40,000 per year plus "sales bonuses." Petitioner claims that her direct supervisor discriminated against her on account of her race and national origin and that she was discharged because she complained about the discriminatory treatment.*fn1
Inland's petition to compel arbitration was based upon the arbitration policy contained in Inland's employee handbook. Inland maintained that petitioner was given the handbook when she was hired and petitioner signed an acknowledgment of having received a copy of it, the original of which is kept in her personnel file.
The introductory section of the employee handbook states, "Upon joining The Independent [Inland's weekly newspaper], you will be given a copy of our employee handbook and asked to complete personnel, payroll and benefit forms. Except as otherwise set forth in individual contracts, the handbook applies to all exempt and nonexempt employees. [¶] The handbook has been prepared for the information and guidance of employees working at The Independent. The handbook is intended to cover the procedures, rules and policies that most often apply to day-to-day work activities. Some of the information will change from time to time since our policies are under constant review and are revised when appropriate. Such changes will be communicated to you in writing in advance of their implementation."
Page 54 of the 58-page employee handbook contains an arbitration policy, which reads in full as follows:
"Any dispute arising out of the termination or alleged termination of any employee's employment, (including, but not limited to, purported violations of statute, claims based on any alleged breach of duty arising out of contract or tort, or any other alleged violation of a statutory, contractual or common law right(s), but excluding workers' compensation and unemployment insurance claims and wage and hour matters within the jurisdiction of the State Labor commissioner) or any claim for discrimination or harassment arising out of any employee's employment, which cannot be resolved through either discussion or mediation, shall be submitted to final and binding arbitration before a neutral arbitrator pursuant to the American Arbitration Association Employment Dispute Resolution rules, as may be amended from time to time (attached to this Handbook as Appendix 'A'). Statutes and laws covered by this policy, include, but are not limited to, equal employment opportunity laws (which include claims for age, race, color, disability, medical condition, marital status, religion, sexual orientation, ancestry, national origin, harassment, pregnancy and sex discrimination), the Federal Civil Rights Acts of 1964 and 1991, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the California Fair Employment Practices Act and California wrongful discharge law.
"Arbitration will be the exclusive means of resolving any dispute described above. No other action will be brought by any employee in any court or other forum except those claims specifically excluded in the arbitration procedures, or as otherwise provided by law. If any dispute should arise, Employee agrees to deliver a written request for arbitration to Janet Armantrout or Joan Seppala within one (1) year of the date the dispute occurred. The request for arbitration shall describe the dispute in sufficient detail to advise the Company of the nature of the dispute, the date when the dispute first arose and the remedies sought. Employees must respond within ten (10) calendar days to each communication regarding the selection of an arbitrator and scheduling of the hearing. If Employee does not file a written request for arbitration within one year of the date of said occurrence or does not respond to any communication about the arbitration proceeding within ten (10) calendar days, such claims will be untimely and therefore barred. The limitations period set forth herein shall not be subject to tolling. Employees shall not have the right to raise any claims, in any forum, arising out of any controversy that is subject to arbitration."
Inland also submitted an acknowledgement of receipt of the handbook, allegedly signed by petitioner, which stated, "I understand and acknowledge that this handbook contains an arbitration policy requiring me to submit any and all disputes described therein to final and binding arbitration and that I cannot pursue such claims before a judge or a jury or in any other forum."
Petitioner challenged the motion to compel arbitration on two grounds. She maintained that the arbitration agreement was unconscionable and, therefore, unenforceable. She also challenged the authenticity of the acknowledgement of receipt Inland submitted in support of its motion. She did not submit a declaration of her own in support of her objections. The superior court rejected the evidentiary challenge and found the agreement was not unconscionable.
II. ISSUE AND STANDARD OF REVIEW
"A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins . . ." (Code Civ. Proc., § 1085, subd. (a)) where "there is not a plain, speedy, and adequate remedy, in the ordinary course of law" (id. § 1086). Although mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be ...