California Court of Appeals, First District, Second Division
Cal.Rptr.3d 445] Contra Costa County Superior Court,
Honorable Steven Austin, Judge (Contra Costa County Super.
Ct. No. C-18 00228)
[Copyrighted Material Omitted]
Law, APC, Jonathan R. Babione, San Ramon, Jennifer Lucas,
Connor M. Day, Walnut Creek, for Plaintiffs and Respondents.
Boggs & Perkins, John Boggs, Half Moon Bay, Roman Zhuk, David
Reese, Long Beach, for Defendants and Appellants.
is an appeal from an order denying a petition to compel
arbitration. We easily affirm the order. And we publish, to
also affirm— and remind the profession of— the
importance of candor toward the court.
Appellant TWC Dealer Group, Inc. (TWC) operated a Toyota
dealership in Walnut Creek. In the spring of 2013,
respondents Donald Davis, Bonnie Davis, and Raymond Davis
(when referred to collectively, the Davises) sought
employment at TWC, to run its special finance department. The
Davises are African-American, and Donald Davis is over the
age of 40. And in connection with that employment, all of the
Davises were required to sign three separate agreements, each
providing that the Davises agreed to arbitration.
Cal.Rptr.3d 446] At no place in its 72-pages of briefing here
does TWC quote the entirety of any, let alone all, of the
agreements, which we note are all different. Specifically:
first agreement, signed by the Davises on April 3, 2013, is
entitled "Applicant Statement and Agreement"
(hereafter, for consistency with the briefing, Agreement No.
1.) Agreement No. 1 is one page long, and consists of six
paragraphs, all in identical and small— and quite
difficult to read— font. None of the six paragraphs is
labeled or titled, in boldface or otherwise. The fourth of
the six paragraphs is the one that refers to arbitration,
in language that is easy to comprehend. The paragraph is 30
lines long, and ends with these three sentences: "If CCP
� 1284.2 conflicts with other substantive statutory
provisions or controlling case law, the allocation of costs
and arbitrator fees shall be governed by said statutory
provisions or controlling case law instead of CCP � 1284.2.
Both the Company and I agree that any arbitration proceeding
must move forward under the Federal Arbitration Act (9 U.S.C.
� � 3-4) even though the claims may also involve or relate to
parties who are not parties in the arbitration agreement
and/or claims that are not subject to arbitration; thus, the
court may not refuse to enforce this arbitration agreement
and may not stay the arbitration proceeding despite the
provisions of California Code of Civil Procedure � 1281.2(c).
I UNDERSTAND BY AGREEING TO THIS BINDING ARBITRATION
PROVISION, BOTH I AND THE COMPANY GIVE UP OUR RIGHTS TO TRIAL
second of the three agreements was signed by the Davises on
April 10. (Agreement No. 2). Agreement No. 2 is two pages,
the first of which says at the top "Agreements" in
capitalized boldface. The two pages contain two paragraphs,
the first of which is entitled "At Will Employment
Agreement." The second paragraph runs from page one over
to page two and is entitled in boldface "Binding
Arbitration Agreement." And what a paragraph it is: 67
lines long, without any indentation, included within which is
a sentence that is 15 lines long.
The third Agreement, also dated April 10, is entitled
"Employee Acknowledgement and Agreement" (Agreement
No. 3). Agreement No. 3 is two pages long, and consists of
six paragraphs, the first of which acknowledges that the
employee has "received a copy of the Employee Handbook
and ... will familiarize myself with its contents." The
arbitration provision is in the third of the six paragraphs,
which paragraph is 49 lines long and includes the same
15-line sentence in Agreement No 2. And the 49-line paragraph
ends with the penultimate— and confusing—
sentence in Agreement No. 1.
indicated, nowhere in its briefing does TWC quote the
entirety of any of the three agreements. What it does say,
citing to 19 pages in the Clerk’s Transcript, is this:
"Each of these agreements signed by each respondent
expressly provides: I and the Company both agree that any
claim, dispute, and/or controversy that either party may have
against one another ... which would otherwise require or
allow resort to any court or other governmental dispute
resolution forum between myself and the Company (or its
owners, directors, officers, managers, employees, agents, and
parties affiliated with its employee benefit and health
plans) arising from, related to, or having any relationship
or connection whatsoever with my seeking employment with,
employment by, or other association with the Company, whether
based on tort, contract, statutory, or equitable law, or
otherwise, ... shall be submitted to and determined
exclusively by binding arbitration.... I agree that the
arbitration and this Agreement shall be controlled by the
Federal Arbitration Act, in conformity with the procedures of
the California Arbitration Act...."
cannot help but observe the four ellipses in TWC’s
quotation— and observe further TWC’s lack of candor,
given how much the quotation misrepresents the Agreements
here. Using Agreement No. 3 for comparison, the first and
second ellipses each omit three lines, the third ellipsis
seven lines, and the last ellipsis 24 lines— 38 lines.
Thirty-eight lines omitted from a 49-line paragraph, a
paragraph that, as will be discussed in detail below, our
Supreme Court has recently described as a "paragon of
prolixity," whose substance is "opaque," and
which has sentences that are "complex, filled with
statutory references, and legal jargon." (OTO,
L.L.C. v. Kho (2019) 8 Cal.5th 111, 128, 251 Cal.Rptr.3d
714, 447 P.3d 680 (Kho ).) That is what the ellipses
leave out. TWC’s conduct is not to be condoned.
Sometime after the Davises became employed, TWC hired a new
General Manager, Ralph Colon. As the Davises describe it,
Colon "began to systematically undermine [the Davises’s]
programs," an effort "punctuated by shockingly
inappropriate ageist and racist comments to and about
them." The Davises attempted to address the issue with
TWC, to no avail. They resigned,
filed complaints with the Department of Fair Employment and
Housing, and obtained right to sue letters. And sued.
The Proceedings Below
February 1, 2018, the Davises filed a complaint naming three
defendants: TWC, John Schafer, alleged to be its owner, and
Colon. The complaint alleged sixteen causes of action related
to their employment at TWC.
Cal.Rptr.3d 448] On March 26, TWC, Schafer, and Colon (for
convenience, TWC) filed a petition to compel arbitration and
stay proceedings. The petition attached copies of the
agreements signed by each of the Davises, and was accompanied
by a declaration of TWC controller Bonnie Guest, who
testified that the three signed agreements were in each of
the three Davises’ personnel files. As Guest also testified,
TWC’s "company policy ... requires all personnel to
participate in its dispute resolution program," going on
to testify that "[t]here are no employees of [TWC] who
are not required to agree to the dispute resolution
provisions, which require binding, individual arbitration of
disputes arising out of the employment." As she summed
it up: "All personnel who commence or continue
employment with [TWC] are required to comply with the
alternative dispute ...