Wadler et al v. Custard Insurance Adjusters, Inc.

Filing 44

ORDER ON 38 MOTION FOR RECONSIDERATION by Judge William H. Orrick. Plaintiffs' motion for reconsideration is GRANTED. The stay in Wadlers claims is lifted and defendants motion to compel Wadlers claim to arbitration is GRANTED. The prior stay remains in effect for the claims of Tyner, Willis, and Springer. (jmdS, COURT STAFF) (Filed on 4/11/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PERRY WADLER, et al., Case No. 17-cv-05840-WHO Plaintiffs, 8 ORDER ON MOTION FOR RECONSIDERATION v. 9 CUSTARD INSURANCE ADJUSTERS, INC., 11 United States District Court Northern District of California 10 Re: Dkt. No. 38 Defendant. 12 13 14 15 Currently before me is plaintiff Wadler’s motion for reconsideration of the stay of his claims in light of newly discovered evidence concerning his employment agreement with defendant Custard Insurance Adjusters, Inc. (CIA). While the Arbitration Acknowledgment in the Employment Agreement and terms governing arbitration from the Handbook contain one 16 substantively unconscionable provision – allowing defendant but not Wadler to seek equitable 17 relief in court – that provision can be severed from the agreement to arbitrate, allowing the 18 agreement to be enforced. For the following reasons, Wadler’s motion for reconsideration is 19 GRANTED, the stay on Wadler’s claims (but not those of the other named plaintiffs) is LIFTED, 20 and defendant’s motion to compel arbitration of Wadler’s claims is GRANTED. 21 22 23 BACKGROUND I. PROCEDURAL BACKGROUND On December 6, 2017, by Minute Order, I granted CIA’s motion to stay the claims of the 24 four named plaintiffs in this case pending the Supreme Court’s resolution of three cases 25 addressing collective action waivers, and denied without prejudice CIA’s motion to compel 26 arbitration. Dkt. No. 35. I also denied without prejudice plaintiffs’ motion for conditional 27 28 certification under the Fair Labor Standards Act (FLSA). Id. Plaintiffs sought leave to file a motion for reconsideration on December 14, 2017, based on 1 2 the recently produced “Employment Agreement” signed by one of the plaintiffs, Perry Wadler. 3 Dkt. No. 36. I granted plaintiffs leave, and advised that if they wished to proceed with an 4 adjudication of Wadler’s defenses to arbitration on the merits, they could file a motion for 5 reconsideration. Dkt. No. 37. Plaintiffs filed that motion on January 12, 2018, and in moving for 6 reconsideration, relied on additional newly secured evidence, namely CIA’s Employee Handbook 7 that contained not only the Employment Agreement and the Arbitration Acknowledgment signed 8 by Wadler but also a section regarding “Arbitration.” In light of that newly revealed Handbook 9 (which Wadler provided to his counsel on January 4, 2018, but was not produced by CIA to 10 plaintiffs), I asked counsel to submit supplemental briefing addressing three discrete topics: United States District Court Northern District of California 11 1. Whether the language in Arbitration section of the Handbook limiting the time for filing claims is unconscionable, even though the same sentence provides “unless a longer period of time is provided by the applicable statute of limitations.” 2. Whether the Arbitration section of the Handbook attempts to preserve the ability of defendant to pursue equitable claims in court while precluding an employee from doing the same, and whether that provision is therefore unconscionable. 3. If either of the provisions identified immediately above is unconscionable, whether it can be severed from the Arbitration Acknowledgment as incorporated and explained by the Handbook. 12 13 14 15 16 17 18 February 14, 2018 Order at 4. Both parties submitted five page briefs addressing these three 19 issues. Dkt. Nos. 41, 42. The matters are now fully briefed and before me for resolution. I recognize that in my December 6, 2017 Minute Order granting defendant’s motion for a 20 21 stay pending the Supreme Court’s resolution of three related cases,1 and denying defendant’s 22 motion to compel arbitration without prejudice to it being renewed following the Supreme Court’s 23 rulings, I did not lay out my thinking on plaintiff Wadler’s unconscionability challenges to the 24 Arbitration Agreement he signed. I will do so now. Resolution of those challenges, in addition to 25 the newly raised challenges based on the Handbook, is necessary in order to fully rule on Wadler’s 26 motion for reconsideration, as that motion asks me to lift the stay as to Wadler and allow Wadler’s 27 1 28 Ernst & Young LLP et al. v. Stephen Morris et al.; NLRB v. Murphy Oil USA Inc.; and Epic Systems Corp. v. Lewis. 2 1 claims to proceed.2 2 II. FACTUAL BACKGROUND CIA submits evidence that plaintiff Wadler was presented with an Arbitration 3 4 Acknowledgement in paper form “in conjunction with a general employment agreement” when he 5 started working for CIA. Declaration of Teresa McKinzie [Dkt. No. 20-3], ¶ 5. The “Arbitration 6 Acknowledgment” signed by Wadler provided that “arbitration” under the rules of the American 7 Arbitration Association (AAA): 8 shall be the sole and exclusive remedy for any alleged cause of action in any manner based upon or arising out of my employment with Custard. . . including any dispute based upon or arising from a written employment agreement (where applicable) or any of its subsidiaries or affiliated companies. I acknowledge that this agreement does not prevent CIA from seeking equitable relief in accordance with the provisions of any employment agreement between CIA and myself, where applicable. I agree that this requirement to arbitrate included any claims I might have against any employees of CIA, its affiliates, and subsidiaries, in any way relating to my employment relationship. I acknowledge that since arbitration is the exclusive remedy, I have no right to seek relief from any court. 9 10 United States District Court Northern District of California 11 12 13 14 15 Arbitration Acknowledgment, Ex. A to the Declaration of Teresa McKinzie. The Arbitration 16 Acknowledgment was contained within the CIA Employee Handbook. That Handbook also 17 contained “General Policies,” that included a section on Arbitration. Declaration of Corey B. 18 Bennett (Dkt. No. 38-1) at ECF Pg. 45-46. 19 The Arbitration section provided that “all claims and disputes” will be resolved through 20 binding arbitration conducted by AAA. The section also required that “employees must initiate 21 arbitration within one year of the time the dispute first arose unless a longer period of time is 22 provided by applicable statute or law. The failure to initiate arbitration within this one year 23 period, or time period provided by statute of law, will forever bar any claim involving that 24 25 26 27 28 2 The three other named plaintiffs – Gerald Springer, Troy Willis, and Keith Tyner – signed arbitration agreements that contained collective action waivers. Wadler’s Arbitration Acknowledgement did not. Given the differences between the agreements signed by Springer, Willis, and Tyner and the one signed by Wadler, and because it is not clear that the Handbook containing Wadler’s Employment Agreement and Arbitration Acknowledgment was used with respect to the employment of Springer, Willis and Tyner, the stay previously granted continues to apply to the claims of Springer, Willis, and Tyner. 3 1 2 3 4 5 dispute.” Id. at ECF Pg. 45. Finally, the Handbook’s Arbitration provision explained: nothing in this Policy shall be construed to prevent CIA from asking a court of competent jurisdiction to enter appropriate equitable relief to enjoin any violation of any written agreement between the Employee and the Company. CIA shall have the right to seek such relief in conjunction with or apart from the parties’ rights under this clause to arbitrate all disputes. Id., ECF Pg. 46. 6 LEGAL STANDARD 7 Under the Federal Arbitration Act (“FAA”), a district court determines (1) whether a valid 8 agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at 9 issue. Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004). “To 10 evaluate the validity of an arbitration agreement, federal courts should apply ordinary state-law United States District Court Northern District of California 11 12 principles that govern the formation of contracts.” Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003) (internal citation omitted). If the court is satisfied “that the making of 13 the arbitration agreement or the failure to comply with the agreement is not in issue, the court shall 14 make an order directing the parties to proceed to arbitration in accordance with the terms of the 15 16 17 agreement.” 9 U.S.C. § 4. “Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999). Under Section 2 of the Federal Arbitration Act, arbitration agreements “shall be valid, 18 irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation 19 20 21 of any contract.” 9 U.S.C. § 2.2. The Supreme Court of the United States has interpreted this language to mean that arbitration agreements may be “invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability” without contravening section 2. AT&T 22 Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011). 23 Plaintiffs assert that the Arbitration Acknowledgment is unenforceable because it, as 24 construed in conjunction with the terms of the Handbook, is both procedurally and substantively 25 unconscionable. Whether a contract is unconscionable is a question of law. Patterson v. ITT 26 Consumer Fin. Corp., 14 Cal. App. 4th 1659, 1663 (1993). In California, unconscionability 27 includes an “absence of meaningful choice on the part of one of the parties together with contract 28 4 1 terms which are unreasonably favorable to the other party.” Lhotka v. Geographic Expeditions, 2 Inc., 181 Cal. App. 4th 816, 821 (Ct. App. 2010) (citation omitted). Accordingly, 3 unconscionability has both a “procedural” and a “substantive” element. Id. Procedural unconscionability occurs where a contract or clause involves oppression, 4 5 consisting of a lack of negotiation and meaningful choice, or surprise, such as where the term at 6 issue is hidden within a wordy document. Id. “California law treats contracts of adhesion, or at 7 least terms over which a party of lesser bargaining power had no opportunity to negotiate, as 8 procedurally unconscionable to at least some degree.” Bridge Fund Capital Corp. v. Fastbucks 9 Franchise Corp., 622 F.3d 996, 1004 (9th Cir. 2010). Substantive unconscionability occurs where the provision at issue “reallocates risks in an 10 United States District Court Northern District of California 11 objectively unreasonable or unexpected manner.” Lhotka, 181 Cal. App. 4th at 821 (citation 12 omitted). “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of 13 the contract term or clause.” Id. at 824–25 (citation omitted). Both procedural and substantive unconscionability must be found before a term will be 14 15 deemed unenforceable, but both need not be present to the same degree. Rather, “the more 16 substantively oppressive the contract term, the less evidence of procedural unconscionability is 17 required to come to the conclusion that the term is unenforceable, and vice versa.” Armendariz v. 18 Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000). DISCUSSION 19 20 I. PROCEDURAL UNCONSCIONABILITY “The term contract of adhesion signifies a standardized contract, which, imposed and 21 22 drafted by the party of superior bargaining strength, relegates to the subscribing party only the 23 opportunity to adhere to the contract or reject it.” Armendariz, 24 Cal. 4th at 113. The 24 Acknowledgment signed by Wadler appears to be a standardized contact. But there is no evidence 25 about how or when the Acknowledgment or Handbook were presented to and signed by Wadler.3 26 27 28 3 In support of plaintiffs’ opposition to the motion to compel, plaintiffs submitted evidence regarding the other three named plaintiffs signing of their Agreements. Bennett Decl., Exs. E-G. 5 1 There is no evidence (much less strong evidence) that the Acknowledgment was a “take it or leave 2 it” condition of commencing or continuing work for CIA. Nor is there evidence that plaintiff 3 Wadler was given the choice of accepting or rejecting the Arbitration Acknowledgment; even if he 4 was not given a choice, “[s]uch a finding [] only indicates that the agreement is somewhat 5 procedurally unconscionable, not that it is unenforceable.” Naria v. Trover, No. 13-02086, 2013 6 WL 4516483, at *3 (N.D. Cal. August 23, 2013). 7 Several additional aspects of the Acknowledgment weigh against finding it procedurally 8 unconscionable. The Acknowledgment is set forth in a separate section of the Handbook with a 9 clear “Arbitration Acknowledgement” title, was separately signed by Wadler, and is less than one page long. Kilgore v. KeyBank, Nat’l. Ass’n, 718 F.3d 1052, 1059 (9th Cir. 2013) (holding that 11 United States District Court Northern District of California 10 there is no procedural unconscionability where arbitration clause was not “buried in fine print in 12 the Note, but was instead in its own section” and “clearly labeled”). Wadler complains that the Acknowledgment and presumably the Arbitration provision in 13 14 the Handbook are procedurally unconscionable because the AAA rules that govern any invoked 15 arbitration proceeding are not found within the signed agreements. Instead, employees are forced 16 to “‘go to another source to find out the full import of what he or she is about to sign—and must 17 go to that effort prior to signing.’” Carmona v. Lincoln Millennium Car Wash, Inc., 226 18 Cal.App.4th 74, 84 (2014) (quoting Harper v. Ultimo, 113 Cal.App.4th 1402, 1406 (2003)). But 19 the mere failure to attach or provide the AAA rules does not make an arbitration agreement 20 unconscionable unless plaintiffs are challenging a specific provision within those rules as 21 unconscionable itself. See, e.g., Da Loc Nguyen v. Applied Medical Resources Corporation, 4 22 Cal.App.5th 232, 249 (2016) (“the failure to attach the applicable AAA rules did not increase the 23 procedural unconscionability of the application or its arbitration provision.”).4 Moreover, the 24 Arbitration provision of the Handbook summarized key provisions of any invoked AAA 25 arbitration--the right to an arbitrator experienced in employment law, the right to discovery, and 26 4 27 28 Nguyen relied on the California Supreme Court opinion in Baltazar v. Forever 21, Inc., 62 Cal.4th 1237, 1243 (2016). Baltazar came out a month after the case relied on by plaintiffs here, Carbajal v. CWPSC, Inc., 245 Cal.App.4th 227 (2016). 6 1 the payment of fees and expenses. The Arbitration Acknowledgement and provisions in the Handbook are, at most, only 2 3 slightly procedurally unconscionable.5 4 II. SUBSTANTIVE UNCONSCIONABILITY In the initial opposition to CIA’s motion to compel and on reconsideration, Wadler makes 5 6 a number of arguments that his Arbitration Acknowledgment and the Arbitration provisions of the 7 Handbook are substantively unconscionable. 8 A. 9 Plaintiffs argue that Wadler’s agreement to arbitrate is substantively unconscionable Lack of Mutuality because there is a lack mutuality to the arbitration requirement, creating “overly harsh one-sided” 11 United States District Court Northern District of California 10 results. They point out that Wadler’s Acknowledgment and the Handbook provisions require that 12 any claim Wadler might bring against CIA be arbitrated, but both provisions allow CIA to go to 13 court to pursue “equitable” relief, as further explained by the Handbook “to enjoin any violation of 14 any written employment agreement.” Handbook at Dkt. No. 38-1 ECF pg. 46. Plaintiffs point to cases that have found that where an arbitration agreement carves out 15 16 claims for injunctive relief from its scope, the provision is essentially non-mutual and, therefore, 17 substantively unconscionable, because only the employer is likely to bring claims for injunctive 18 relief. Carbajal v. CWPSC, Inc., 245 Cal. App. 4th 227, 248 (2016) (relying on Trivedi v. Curexo 19 Technology Corp., 189 Cal.App.4th 387 (2010)). But the language from Trivedi that the Carbajal 20 court and plaintiffs rely on here (Oppo. to Motion to Compel [Dkt. No. 27] at 19) was disapproved 21 of by the California Supreme Court in Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237, 1248 22 23 24 25 26 27 28 5 Repeating part of the argument with respect to procedural unconscionability, plaintiffs also initially argued (before they had received the Handbook and only with respect to Wadler’s Acknowledgment), that arbitration could not be enforced against Wadler because of a lack of “mutual assent.” Plaintiffs’ Oppo. to Motion to Compel [Dkt. No. 27] 14-15. Plaintiffs rest that argument on CIA’s failure (1) to sign the Acknowledgment and (2) failure to include the AAA rules or describe the major provisions of those rules (e.g., how an arbitrator will be chosen, whether discovery is allowed, whether a written award will be issued, the type of relief available, and cost and/or fee-sharing. Id. at 14. The second set of arguments have been addressed and rejected based on the rationale of Da Loc Nguyen v. Applied Medical Resources Corporation, 4 Cal.App.5th 232, 249 (2016). As to the first, the lack of a signature, plaintiffs cite no authority requiring one. 7 1 (2016). Baltazar confirmed that arbitration agreements that simply preserve the right of “any 2 party” to seek provisional injunctive relief during the pendency of an arbitration, as allowed under 3 California Code of Civil Procedure Section 1281.8(b), are not substantively unconscionable even 4 if an employer is more likely than an employee to seek that injunctive relief. Id. at 1247-48. 5 However, there is a different problem with the Acknowledgement and Handbook 6 provisions governing Wadler’s agreement to arbitration; only CIA is allowed to seek that 7 injunctive relief. Wadler is not allowed to seek “any relief” from any court. CIA argues that it is 8 “ambiguous” whether Wadler could seek equitable relief in court and, as such, the language 9 should be construed against CIA (the drafter) to allow Wadler to likewise pursue equitable claims in court. Defendant’s Oppo. to Reconsideration [Dkt. No. 42] at 4. CIA’s argument ignores the 11 United States District Court Northern District of California 10 explicit language in the Acknowledgment that “I have no right to seek relief in any court.” That 12 language is not ambiguous. CIA’s argument that the language in paragraph 5 of the Arbitration 13 section of the Handbook, identifying the venue and jurisdiction for disputes “submitted to a court 14 rather than an arbitrator, including actions to compel arbitration,” is likewise ambiguous and 15 “seems to grant” Wadler the right to pursue equitable claims in the appropriate court, is also not 16 persuasive. Id. The Acknowledgment and Arbitration provision in the Handbook allow CIA, but not 17 18 Wadler, to seek equitable relief in court. The one-sided nature of the equitable relief carve out is 19 substantively unconscionable.6 20 B. 21 Plaintiffs argue that because Wadler’s Acknowledgment allows CIA’s “affiliates and 22 subsidiaries” to enforce the arbitration agreement even though they are not signatories to the 23 Acknowledgment, it is substantively unconscionable. However, because affiliates and subsidiaries 24 may be recognized as CIA’s “agents,” and under California law, and agents are entitled to enforce 25 arbitration agreement to the same extent CIA is, there is no substantive unconscionability. See, Non-Signatory Enforcement 26 27 28 6 Given the stay, I do not address the argument that the Tyner/Willis/Springer Agreements suffer from additional non-mutuality defects because they carve out breach of non-disclosure and noncompete agreement claims from the scope of arbitration. 8 1 e.g., Laswell v. AG Seal Beach, LLC, 189 Cal. App. 4th 1399, 1406 (2010) (“nonparties to 2 arbitration agreements are allowed to enforce those agreements where there is sufficient identity of 3 parties.”).7 4 C. 5 Based on language in the arbitration provision of the Handbook, Wadler makes a new Statute of Limitations substantive unconscionability argument on reconsideration. Wadler notes that in the Handbook’s 7 provision, “employees must initiate arbitration within one year of the time the dispute first arose 8 unless a longer period of time is provided by applicable statute or law.” Dkt. No. 38-1 at ECF Pg. 9 45. Wadler argues this provision is substantively unconscionable because it “created the illusion” 10 of a time-bar that is contrary to the applicable statute of limitations for the claims at issue here and 11 United States District Court Northern District of California 6 whose only effect is to deter employees from filing claims. Plaintiffs’ Mot. for Reconsideration 12 [Dkt. No. 38] at 10. Plaintiffs rely on Martinez v. Master Protec. Corp., 118 Cal. App. 4th 107 13 (Cal. App. 2d Dist. 2004), which held that an arbitration provision cannot impose a “vastly 14 shortened statute of limitations” upon employee claims because that “constitutes an unlawful 15 attempt” to “restrict its employees’ statutory rights.” Id. at 117. The provision here, however, adds qualifying language: “unless a longer period of time is 16 17 provided by applicable statute or law.” CIA points out that almost identical language was 18 addressed and unconscionability rejected in Harris v. Halliburton Co., 116CV00281LJOJLT, 19 2016 WL 3255074, at *12 (E.D. Cal. June 13, 2016), report and recommendation adopted, 20 116CV00281LJOJLT, 2016 WL 4204604 (E.D. Cal. Aug. 9, 2016). The court in Harris reviewed 21 an arbitration agreement that provide that claims must be initiated “‘within one year after the event 22 which gives rise to the Dispute or the time allowed by applicable law for the filing of a judicial 23 complaint, whichever is longer.’” Id. at *12. The court concluded that the “whichever is longer” 24 language meant that “the arbitration agreement does not impose a shortened statute of limitations 25 upon the parties, and there is no imposition or undue advantage.” Id. Acknowledging but not distinguishing Harris, plaintiffs contend that the language in 26 27 7 28 Of course application of the “sufficient identity” of the parties test would depend on the facts; facts not at issue here. 9 1 CIA’s Handbook is nonetheless problematic for two reasons. First, plaintiffs argue that the 2 shortened statute suggested by the Handbook (even with the “unless” language) is an 3 impermissible attempt to mislead and ultimately deter employees from filing claims. It is, 4 according to plaintiffs, yet another attempt to force employees to find “applicable rules” outside of 5 the scope of the arbitration agreement itself, like the AAA rules argument addressed above. 6 Plaintiffs’ Supp. Brief at 2. However, that plaintiffs need to consult with outside sources (to locate 7 the AAA rules or determine applicable statute of limitations) does not make the arbitration 8 provision unconscionable. Second, plaintiffs argue that the use of the term “when the dispute first arose” is 10 problematic because it purports to “deprive employees of relief under the continuing violation 11 United States District Court Northern District of California 9 doctrine.” Id. at 3. But whether a continuing violations theory is legally viable is not determined 12 or limited in any way by the arbitration provision Wadler agreed to. The provision at issue is 13 significantly different from arbitration agreements that attempt to expressly impose a shorter 14 statute of limitations on employee claims than allowed by law. See, e.g., Cir. City Stores, Inc. v. 15 Adams, 279 F.3d 889, 894 (9th Cir. 2002); Ingle v. Cir. City Stores, Inc., 328 F.3d 1165, 1175 (9th 16 Cir. 2003). 17 D. 18 Generally, only where there are arbitration provisions with “several” unconscionable terms Severability of Any Substantively Unconscionable Provisions 19 will severance be rejected as a solution. See, e.g., Farrar v. Direct Com., Inc., 9 Cal. App. 5th 20 1257, 1274 (Cal. App. 1st Dist. 2017) (citing California cases and severing a single 21 unconscionable provision exempting claims of breach of confidentiality from scope of arbitration 22 agreement). While plaintiffs claim there are multiple unconscionable elements in the arbitration 23 provisions agreed-to by Wadler, I have found only one; the one-sided carve out for equitable 24 claims. 25 Plaintiffs argue, however, that this unconscionable provision is especially significant 26 because there are other, non-arbitration-related provisions in Wadler’s Employment Agreement 27 and Handbook that are illegal: most importantly, illegal non-compete agreements and unlawful 28 vacation and overtime policies. Plaintiffs’ Supplemental Brief [Dkt. No. 41] at 5. Wadler argues 10 1 that because CIA reserved the right to itself to seek equitable relief to enforce these illegal policies 2 in court, the nature of the unconscionability is arguably larger and cannot be cured through 3 severance. I disagree. The only issue before me is whether I can sever the one unconscionable 4 term in the arbitration provision. Here, the appropriate course is to sever out the sections allowing CIA to seek equitable 5 relief in court and the one preventing Wadler from seeking “any relief” in court. That would solve 7 the non-mutuality problem. That would also protect CIA’s expected and protected interests, 8 because both CIA and Wadler would retain the right under California law to seek injunctive relief 9 under California Code of Civil Procedure § 1281.8(b).8 See Farrar, 9 Cal. App. 5th at 1275 10 (reversing trial court’s failure to severe from arbitration agreement exception allowing claims 11 United States District Court Northern District of California 6 arising from a confidentiality agreement to be litigated in court, concluding intent to preserve 12 ability to seek appropriate injunctive relief in aid of the parties’ agreements was preserved by 13 C.C.P. § 1281.8(b)).9 14 CONCLUSION 15 Plaintiffs’ motion for reconsideration is GRANTED. The stay in Wadler’s claims is lifted 16 and defendant’s motion to compel Wadler’s claim to arbitration is GRANTED. The prior stay 17 remains in effect for the claims of Tyner, Willis, and Springer. IT IS SO ORDERED. 18 19 Dated: April 11, 2018 20 21 William H. Orrick United States District Judge 22 23 8 24 25 26 C.C.P. § 1281.8(b) provides that: “A party to an arbitration agreement may file in the court in the county in which an arbitration proceeding is pending, or if an arbitration proceeding has not commenced, in any proper court, an application for a provisional remedy in connection with an arbitrable controversy, but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief.” 9 27 28 CIA asserts a host of evidentiary objections to the evidence, particularly the Handbook, relied on by plaintiffs in moving for reconsideration. Dkt. No. 39-1. The objections for lack of foundation, relevance, hearsay, and that the evidence relied on by plaintiffs is either not new or exceeds the scope of my December 29, 2017 order are DENIED. 11

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