California Court of Appeals, Second District, Fifth Division
FOR PARTIAL PUBLICATION[*]]
from an order of the Superior Court of Los Angeles County,
No. TC027966, William P. Berry, Judge.
[Copyrighted Material Omitted]
Law Group, Rachel D. Stanger, Brandon C. Fernald and Gina
McCoy for Defendants and Appellants.
& Franck, Scott O. Cummings and Lee Franck for Plaintiff
TAP Worldwide, LLC, Eddie Rivera and Alex Dominguez, appeal
from an order denying their motion to compel arbitration.
Plaintiff, Dwayne Harris, filed a complaint against
defendants alleging wrongful termination and violations of
the California Fair Employment and Housing Act (Gov. Code,
§ 12900 et seq.) and the Labor Code. Defendants moved to
compel arbitration relying upon an arbitration agreement
acknowledged receiving. Plaintiff asserted there was no
arbitration agreement and alternatively argued any agreement
was unconscionable. Defendants’ motion to compel
arbitration was denied.
assert the trial court erred because the arbitration
agreement attached as Appendix A to the employee handbook
(Employee Handbook is enforceable. The undisputed facts
demonstrate: there is a valid arbitration agreement; the
agreement to arbitrate is not illusory; and, as discussed in
the unpublished part of our opinion, the arbitration
agreement is not unconscionable to the degree that it is
unenforceable. Accordingly, we reverse the order under
October 10, 2014, plaintiff filed his complaint. Plaintiff
alleges he was employed by TAP Worldwide, LLC which utilizes
the fictitious business name of 4 Wheel Parts Performance
Center at a warehouse located in Compton, California. Mr.
Rivera was the warehouse manager for TAP Worldwide, LLC. Mr.
Dominguez was the lead for the department and a supervisor
and manager for TAP Worldwide, LLC. Plaintiff is
alleges racial discrimination, harassment and retaliation
towards himself and other African-American employees by
defendants. Plaintiff alleges he and other employees were
denied meal and rest breaks and overtime pay and other Labor
Code violations. Plaintiff is married and requested leave
under the Moore-Brown-Roberti Family Rights Act (Gov. Code,
§§ 12945.1, 19702.3) due to the serious health
condition of a family member. TAP Worldwide, LLC denied him
his Moore-Brown-Roberti Family Rights Act rights and his
requested time off. Plaintiff alleges Mr. Dominguez used a
forklift in an unsafe manner. Mr. Dominguez pushed plaintiff
with a forklift. This occurred while plaintiff was operating
another unidentified vehicle. Plaintiff reported these health
and safety issues to TAP Worldwide, LLC. TAP Worldwide, LLC
terminated plaintiff’s employment on December 18, 2013.
brought 12 causes of action: racial discrimination in
violation of the California Fair Employment and Housing Act;
marital status discrimination and retaliation in violation of
the California Fair Employment and Housing Act; association
discrimination and retaliation in violation of the California
Fair Employment and Housing Act; interference with
Moore-Brown-Roberti Family Rights Act rights and retaliation;
retaliation for opposing practices forbidden by the
California Fair Employment and Housing
hostile work environment in violation of the California Fair
Employment and Housing Act; violation of Labor Codes sections
233 and 234 for denial of kin care; wrongful termination in
violation of public policy; non-payment of wages, including
overtime, in violation of the Division of Labor Standards
Enforcement and the Labor Code; failure to provide meal and
rest breaks in violation of the Labor Code; intentional
severe emotional distress infliction; and failure to do
everything reasonably necessary to prevent discrimination,
harassment and retaliation in violation of the California
Fair Employment and Housing Act. Plaintiff sought as relief
damages, costs of suit including attorney fees, lost wages,
declaratory relief, waiting time penalties, and other
injunctive and equitable relief.
Defendants’ Motion to Compel Arbitration
November 17, 2014, defendants moved to compel arbitration.
Defendants relied on three documents: the Employee Handbook;
the Current Employment Alternative Dispute Resolution Policy
(the arbitration agreement); and the “CURRENT
EMPLOYMENT ALTERNATIVE DISPUTE RESOLUTION AGREEMENT”
which was attached as Appendix A to the Employee Handbook.
Plaintiff acknowledged in writing receiving the Employee
Handbook with the attached arbitration agreement on September
16, 2012, when he became an employee of TAP Worldwide, LLC.
He had previously worked at TAP Worldwide, LLC but as an
employee of a temporary employment service. The written
acknowledgement states: “ACKNOWLEDGEMENT OF
RECEIPT [¶] I hereby confirm and acknowledge
receipt of [defendant’s]: [¶]  Alternative
Dispute Resolution Agreement for current employees; and 
Personnel Policy Handbook.” The parties do not dispute
that the Personnel Policy Handbook is the Employee Handbook.
Plaintiff declared he actually signed the acknowledgement of
receipt of the documents on September 16, 2012, but the year
was erroneously listed as 2010.
one of the Employee Handbook states, “It is each
employee’s responsibility to read, understand and
follow the provisions of this Handbook; accordingly, you will
find it to your advantage to read promptly the entire
Handbook.” Page nine of the handbook is entitled,
“MANDATORY ALTERNATIVE DISPUTE RESOLUTION BINDING
ARBITRATION OF CLAIMS.” Page nine of the employee
handbook then states: “The Company has adopted
mandatory binding arbitration as a means of dispute
resolution regarding any and all employment related claims
that may exist between the Company and an employee, and vice
versa. Confirmation of receipt and agreement to this policy
is an absolute prerequisite to your hiring by, and continued
employment with, the Company. [¶] Under this policy,
should any employment related dispute arise between you and
the Company, for whatever reason, both you and the Company
will be required to resolve the
dispute through binding arbitration. This means that neither
you nor the Company can file a civil lawsuit against the
other to seek redress for any employment related grievances.
[¶] Binding arbitration has proven itself to be a highly
useful and cost effective means to resolving disputes which
may arise between employer and employee. We hope that through
this policy, any claims that may arise between you and the
Company can be resolved quickly, efficiently and to the
satisfaction of everyone involved. [¶] For a complete
summary of the Company’s policy on mandatory binding
arbitration, please see Appendix A to this Handbook, as well
as the Agreement to Arbitrate, a copy of which you will be
required to execute prior to employment with the Company.
[¶] If, for ...