Case Number: BC682935 Hearing Date: February 05, 2018 Dept: 53
IRFAN RANMAL vs. ACTIVISION PUBLISHING, INC. , et al.; BC682935, FEBRUARY 5, 2018
[Tentative] Order RE: ACTIVISION PUBLISHING, INC.’S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS
Defendant ACTIVISION PUBLISHING, INC.’s motion to compel arbitration and stay proceedings is GRANTED.
BACKGROUND
Plaintiff Irfan Ranmal (“Plaintiff”) brought this action against his former employer, Activision Publishing, Inc. (“Activision”) on November 8, 2017. The Complaint asserts causes of action for: (1) breach of oral contract, (2) breach of implied covenant of good faith and fair dealing, (3) violation of Civil Code section 1785.25(a), (4) fraud, and (5) negligent misrepresentation.
Activision now petitions the Court to compel arbitration pursuant to an arbitration agreement entered into by Plaintiff in connection with his employment. Activision also moves to stay this action pending resolution of the arbitration. Ranmal opposes, arguing that there is no valid arbitration agreement.
LEGAL STANDARD
In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.)
Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc. § 1281.2; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218-219.)
“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Ibid. (internal quotations omitted).)
DISCUSSION
Plaintiff argues that no arbitration agreement exists because he expressly opted out of the agreement to arbitrate offered by Activision. There is no dispute that sometime in December 2016, Plaintiff received an email from Activision regarding an arbitration agreement from which Plaintiff, as well as other Activision employees, could expressly opt out. (Ranmal Decl., ¶ 5; Marks Decl., ¶ 5.) The email contained a memorandum and attachments that included the arbitration agreement, a list of frequently asked questions about the arbitration policy, and an “opt-out” form. (Marks Decl., ¶¶ 5, 10, Ex. E.) The memorandum alerts employees to the voluntary arbitration agreement and also provides instructions to employees who wish to opt-out of the arbitration agreement, namely, to fill out the opt-out form and submit it to a specified email address by a certain date. (Marks Decl., ¶ 10, Ex. E.) The memorandum also noted that employees who did not submit the opt-out form and receive an email acknowledgment of receipt would “automatically [] be deemed to have consented to the [arbitration agreement.]” (Marks Decl., ¶ 10, Ex. E.) The opt-out form itself contained the same instructions. (Marks Decl., ¶ 5, Ex. D.)
Plaintiff contends that because he no longer has access to his Activision email, he cannot attest to the content of the arbitration agreement email. However, Plaintiff contends in any case that he “believed and understood that [the email] was directing [him] to reply to the email if [he] wished to opt-out of the arbitration agreement.” (Ranmal Decl., ¶ 7.) Plaintiff further contends that he replied to the arbitration email in January of 2017, stating his wish to opt out of the arbitration agreement. (Ranmal Decl., ¶ 9.) Plaintiff also contends that he archived the arbitration email as well as his reply email, and that Activision should have access to these emails. (Ranmal Decl., ¶ 11.)
In reply, Activision presents evidence that Plaintiff’s purported reply email does not exist; a search of Plaintiff’s Activision email account produced no emails sent from Plaintiff to the arbitration email account. (Cohen Decl., ¶ 7.) Plaintiff asks that the Court disregard this as “new,” and thus, improper, evidence because it was first raised in reply papers. Generally, new evidence is not permitted with reply papers, but the Court does have discretion to accept new evidence if the opposing party has given an opportunity to respond. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1307-08.) Without exercising this discretion, the Court finds that there is sufficient evidence in Activision’s moving papers to support compelling arbitration.
In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) As noted by Activision, “[a]n offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a specified act, or may empower the offeree to make a selection of terms in his acceptance.” (Rest. 2d Contracts § 30.) Further, “[u]nless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances.” (Ibid.) Plaintiff has not rebutted Activision’s argument that the instructions for opting out were provided to Plaintiff and that he did not comply with those instructions. The effect of noncompliance was the deemed acceptance of the arbitration agreement. Therefore, Plaintiff’s belief that simply replying to the arbitration email was sufficient to opt-out does not rebut the evidence presented by Activision.
The Court concludes that Activision has shown by a preponderance of the evidence that a valid arbitration agreement existed. Moreover, Plaintiff has not proffered any other ground for denial.
CONCLUSION
Based on the foregoing, Activision’s motion to compel arbitration is GRANTED. All of Plaintiff’s claims against Defendant are ordered to arbitration. This action is stayed pending the completion of arbitration of the arbitrable claims. (CCP §1281.4; 9 U.S.C. §3.) The Court sets a hearing to review the status of the arbitration for October 2, 2018 at 8:30 a.m. in this Department.
Activision is ordered to provide notice of this ruling.
DATED: February 5, 2018
_____________________________
Howard L. Halm
Judge of the Superior Court