Guillermo Bill Gonzalez v. Anheuser-Busch Companies

• Court: District Court, C.D. California
• Decided: April 18, 2023
• Docket: 2:21-cv-08060
• Status: Unknown

Opinion

1 JS-6 'O' 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CV 21-08060-RSWL-MAR x 12 GUILLERMO BILL GONZALEZ, ORDER re: 13 Plaintiff, Defendant’s Motion to 14 v. Compel Arbitration [17] 15 ANHEUSER-BUSCH COMPANIES, 16 et al., 17 Defendant. 18 Plaintiff Guillermo Bill Gonzalez (“Plaintiff”) 19 brings this Action against Defendant Anheuser-Busch 20 Commercial Strategy, LLC (“Defendant”) alleging: 1) 21 disability discrimination; 2) age discrimination; 3) 22 failure to accommodate a disability; 4) failure to 23 engage in the interactive process; 5) retaliation; 6) 24 wrongful termination; 7) constructive discharge; 8) 25 violation of the California Family Rights Act; and 9) 26 failure to pay all wages due and owed at the time of 27 termination. Currently before the Court is Defendant’s 28 1 Motion to Compel Arbitration (“Motion”) [17]. 2 Having reviewed all papers submitted pertaining to

3 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: 4 the Court GRANTS Defendant’s Motion. 5 I. BACKGROUND 6 A. Factual Background 7 1. Plaintiff’s Complaint 8 Plaintiff is an individual who resides in the State 9 of California, County of Ventura. Compl. ¶ 1, ECF 10 No. 1-2. Defendant is a large brewing company that 11 operates in the United States. Id. ¶ 12. 12 On July 11, 1978, Defendant hired Plaintiff to work 13 at one of Defendant’s breweries. Id. ¶ 13. Plaintiff 14 worked for Defendant for thirty-five years, eventually 15 becoming a business manager at the brewery. Id. ¶ 14. 16 In 2014, Plaintiff suffered multiple work-related 17 injuries. Id. ¶ 15. Plaintiff stopped working and 18 started to receive disability benefits. Id. Time 19 passed, and Plaintiff recovered to a degree in which he 20 could perform sedentary work. Id. ¶ 16. Plaintiff’s 21 supervisor refused to accommodate Plaintiff and 22 requested that Plaintiff work in a position which 23 required a “great deal of walking.” Id. Due to the 24 supervisor’s demands, Plaintiff quit working for 25 Defendant. Id. In 2019, as a condition of a worker’s 26 compensation settlement, Plaintiff agreed to never 27 return to work for Defendant. Id. ¶¶ 17-18. 28 /// 1 B. Procedural Background

2 On April 13, 2021, Plaintiff filed his Complaint

3 [1-2] in the Superior Court of the State of California, 4 County of Los Angeles. On October 8, 2021, Defendant 5 filed its Notice of Removal [1]. 6 On December 6, 2022, Defendant filed the instant 7 Motion to Compel Arbitration [17]. On January 17, 2023, 8 Plaintiff opposed [21]. On January 24, 2023, Defendant 9 replied [22]. 10 II. DISCUSSION 11 A. Legal Standard 12 “[T]he Federal Arbitration Act (“FAA”) makes 13 agreements to arbitrate ‘valid, irrevocable, and 14 enforceable, save upon such grounds as exist at law or 15 in equity for the revocation of any contract.’” AT&T 16 Mobility LLC v. Concepcion, 563 U.S. 333, 336 (2011) 17 (quoting 9 U.S.C. § 2). 18 Provided that a court is “satisfied that the making 19 of the agreement for arbitration or that failure to 20 comply therewith is not an issue,” the court is required 21 to direct the parties to proceed to arbitration. See 9 22 U.S.C. § 4; Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 23 63, 68 (2010). When Congress enacted FAA section 2, it 24 intended to declare a “national policy favoring 25 arbitration.” Southland Corp. v. Keating, 465 U.S. 1, 26 10 (1984). “[A]ny doubts concerning the scope of 27 arbitrable issues should be resolved in favor of 28 arbitration.” Ferguson v. Corinthian Colls., Inc., 1 733 F.3d 928, 938 (9th Cir. 2013).

2 “Generally, a court’s role under the FAA is limited

3 to determining ‘two gateway issues: (1) whether there is 4 an agreement to arbitrate between the parties; and 5 (2) whether the agreement covers the dispute.’” Manuwal 6 v. BMW of N. Am., LLC, 484 F. Supp. 3d 862, 865 7 (C.D. Cal. 2020) (quoting Brennan v. Opus Bank, 796 F.3d 8 1125, 1130 (9th Cir. 2015)). 9 B. Discussion 10 In deciding a motion to compel arbitration under 11 the FAA, a court’s inquiry is limited “to determining 12 (1) whether a valid agreement to arbitrate exists and, 13 if it does, (2) whether the agreement encompasses the 14 dispute at issue.” Revitch v. DIRECTV, LLC, 977 F.3d 15 713, 716 (9th Cir. 2020) (quoting Chiron Corp. v. Ortho 16 Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 17 2000)). “If the response is affirmative on both counts, 18 then the [FAA] requires the court to enforce the 19 arbitration agreement in accordance with its terms.” 20 Id. 21 “Under California law, ‘the party opposing 22 arbitration bears the burden of proving any defense, 23 such as unconscionability.’” Poublon v. C.H. Robinson 24 Co., 846 F.3d 1251, 1260 (9th Cir. 2017) (quoting 25 Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), 26 LLC, 55 Cal. 4th 223, 236 (2012)). 27 Here, Plaintiff argues that he is not bound by 28 Defendant’s DRP because Plaintiff never agreed to it. 1 Opp’n at 4:15-17. Furthermore, Plaintiff contends that

2 even if he did accept the terms of Defendant’s DRP, the

3 arbitration agreement is unconscionable and should not 4 be enforced. See id. at 9:15-27. 5 1. Evidentiary Objections 6 Plaintiff objects to excerpts of the Marjorie Yocum 7 Declaration. See Pl.’s Evid. Objs., ECF No. 21-3. 8 Defendant objects to excerpts of the Guillermo Bill 9 Gonzalez and Marc Appell Declarations. See Def.’s Evid. 10 Objs., ECF Nos. 23, 24. 11 “On a motion to compel arbitration, the court 12 applies a standard similar to the summary judgment 13 standard applied under Rule 56 of the Federal Rules of 14 Civil Procedure.” E.g., Alvarez v. T-Mobile USA, Inc., 15 2011 U.S. Dist. LEXIS 146757, at *8 (E.D. Cal. Dec. 20, 16 2011). Under Federal Rule of Civil Procedure 56, “[a] 17 party may object that the material cited to support or 18 dispute a fact cannot be presented in a form that would 19 be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). 20 Consequently, the focus of an objection on a motion to 21 compel arbitration is not “the admissibility of the 22 evidence’s form” but on the “admissibility of its 23 contents.” See Fraser v. Goodale, 342 F.3d 1032, 1036 24 (9th Cir. 2003). The Court has considered the 25 admissibility of the evidence and has not considered 26 facts that are irrelevant or that could not be in a form 27 that would be admissible at trial. See Norse v. City of 28 Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). 1 a. Plaintiff’s Objections

2 Here, Plaintiff’s objects to the Marjorie Yocum

3 Declaration on the grounds that: (1) Ms. Yocum lacks 4 personal knowledge; (2) her testimony is inadmissible 5 hearsay; (3) she is not a qualified witness under 6 Federal Rule of Evidence (“Rule”) 803(6); and (4) her 7 offered documentary evidence lacks foundation. See 8 generally Pl.’s Evid. Objs. 9 Ms. Yocum administers Defendant’s DRP as a 10 “Benefits Manager,” and is familiar with its history and 11 how it currently applies. Decl. of Marjorie Yocum ¶¶ 2- 12 6. Therefore, her statements are within the scope of 13 her job responsibilities and are based on personal 14 knowledge. See Abrahim v. Esis, Inc., No. C-07-04014 15 JCS, 2008 U.S. Dist. LEXIS 8909, at *6-7 (N.D. Cal. Jan. 16 25, 2008) (holding that an employee had personal 17 knowledge of how a company administered its arbitration 18 policy given the employee’s title and job 19 responsibilities). 20 Accordingly, to the extent that Ms. Yocum’s 21 testimony may constitute hearsay, it falls under the 22 Rule 803(6) exception. Considering the Supplemental 23 Declaration of Marjorie Yocum, the requirements of the 24 business record exception are met.1 See generally

25 1 District courts may in their discretion consider a supplemental declaration or a supplemental piece of testimony 26 attached to a reply brief “to the extent that it replies to 27 arguments raised in the Opposition and does not raise new issues or introduce new information.” Sweet v. Pfizer, 232 F.R.D. 360, 28 364 n.6 (C.D. Cal. 2005). 1 Suppl. Decl. of Marjorie Yocum, ECF No. 22-1; see Fed.

2 R. Evid. 803(6). As to Plaintiff’s specific objection

3 that Ms. Yocum is not a qualified witness, Ms. Yocum is 4 a qualified witness under Rule 803(6) because “[t]he 5 phrase ‘other qualified witness’ is broadly interpreted 6 to require only that the witness understand the record- 7 keeping system.” United States v. Ray, 930 F.2d 1368, 8 1370 (9th Cir. 1990). Ms. Yocum has testified that she 9 understands Defendant’s record keeping as it relates to 10 the DRP. See generally Suppl. Decl. of Marjorie Yocum. 11 Plaintiff lastly objects to Ms. Yocum’s documentary 12 evidence as lacking foundation. “Rule 803(6)’s 13 foundation requirement ‘may be satisfied by the 14 testimony of anyone who is familiar with the manner in 15 which the document was prepared, even if [s]he lacks 16 firsthand knowledge . . . and even if [s]he did not 17 [herself] either prepare the record or even observe its 18 preparation.’” Lomeli v. Midland Funding, LLC, No. 19- 19 CV-01141-LHK, 2019 U.S. Dist. LEXIS 166151, at *16 (N.D. 20 Cal. Sep. 26, 2019) (quoting Miller v. Fairchild Indus., 21 Inc., 885 F.2d 498, 514 (9th Cir. 1989)). 22 Here, as a qualified witness, Ms. Yocum understands 23 how the DRP is administered, and further understands the 24 DRP’s mailing process. See generally Suppl. Decl. of 25 Marjorie Yocum. Simply because Ms. Yocum did not work 26 for Defendant in 2004 or mail the DRP herself to 27 Plaintiff, does not mean that Rule 803(6) is not 28 satisfied. See United States v. Bland, 961 F.2d 123, 1 127 (9th Cir. 1992) (“The fact that [a declarant] did

2 not complete [a form] himself, and his failure to

3 identify either the specific person who completed [the 4 form] or when that person completed it, do not keep [the 5 form] from being a business record.”). While Plaintiff 6 has not demonstrated that Ms. Yocum’s testimony lacks 7 trustworthiness, Ms. Yocum has testified that credible 8 business records exist that assert that the DRP was 9 mailed to Plaintiff’s address in 2004. See generally 10 Suppl. Decl. of Marjorie Yocum; see generally Pl.’s 11 Evid. Objs. 12 Therefore, after reviewing Plaintiff’s objections 13 to the Marjorie Yocum Declaration, Plaintiff’s 14 objections are OVERULLED. 15 b. Defendant’s Objections 16 Given that the Court does not rely on the excerpts 17 to which Defendant objects to in the Guillermo Bill 18 Gonzalez and Marc Appell Declarations, the Court DENIES 19 as moot Defendant’s objections to those 20 Declarations. See Muhammad v. Reese L. Grp., APC, No. 21 16cv2513-MMA (BGS), 2017 U.S. Dist. LEXIS 91792, at *5 22 (S.D. Cal. June 14, 2017) (denying evidentiary 23 objections as moot in which the court “did not rely on 24 the . . . declarations and exhibits in ruling on the . . 25 . motion.”). 26 2. A Valid Arbitration Agreement Exists 27 General California principles of contract law 28 determine whether parties have entered into a binding 1 agreement to arbitrate. See Chan v. Drexel Burnham

2 Lambert, Inc., 178 Cal. App. 3d 632, 640 (1986). A

3 party’s acceptance of an agreement to arbitrate may be 4 express or implied. See Gorlach v. Sports Club Co., 209 5 Cal. App. 4th 1497, 1507 (2012). 6 In California, an at-will employee accepts changed 7 employment terms if the employee continues working after 8 the employer gives notice of the changed terms. See 9 Asmus v. Pac. Bell, 23 Cal. 4th 1, 11 (2000) 10 (“California law permits employers to implement policies 11 that may become unilateral implied-in-fact contracts 12 when employees accept them by continuing their 13 employment.”); see also DiGiacinto v. Ameriko-Omserv 14 Corp., 59 Cal. App. 4th 629, 632 (1997) (holding that an 15 employee impliedly accepted reduced compensation by 16 continuing to work after receiving a letter from the 17 employer regarding the compensation change). 18 Here, Defendant argues the DRP is a binding 19 agreement between the Parties to arbitrate because 20 Plaintiff accepted the DRP’s terms by continuing to be 21 employed by Defendant and the DRP is not substantively 22 and procedurally unconscionable. See generally Mot. 23 a. Plaintiff Agreed to Arbitrate His 24 Employment Disputes with Defendant 25 “Under both [California] and federal law, a 26 properly mailed letter is presumed to have been 27 received.” Pollok v. Vanguard Grp., Inc., 774 F. App’x 28 407, 408 (9th Cir. 2019). “When there is evidence of 1 mailing, it can only be rebutted by actual evidence of

2 non-receipt.” Chavez v. Bank of Am., No. C 10-653 JCS,

3 2011 U.S. Dist. LEXIS 116630, at *19 (N.D. Cal. Oct. 7, 4 2011) (holding that a plaintiff’s specific factual 5 denial of receipt was insufficient to rebut the 6 presumption of mailing). 7 Plaintiff began working for Defendant in 1978. 8 Compl. ¶ 13. Defendant started its DRP in 1994. See 9 Decl. of Marjorie Yocum ¶ 4. Defendant updated its DRP 10 in 2004. Id. ¶ 5. 11 In 2004, Defendant sent a packet in the mail 12 explaining the DRP updates to Plaintiff. Id. ¶ 6. The 13 DRP packet explained what arbitration is and explained 14 that Plaintiff was making a new binding agreement by 15 continuing to be employed by Defendant. See Decl. of 16 Marjorie Yocum, Ex. 1 at 2. The DRP packet explained to 17 Plaintiff that by continuing to be employed by 18 Defendant, Plaintiff agreed to submit all his “covered 19 claims” to arbitration. Id. at 1. 20 In 2004, Defendant noted and recorded that it sent 21 a DRP packet through the mail to Plaintiff’s home 22 address. See Decl. of Marjorie Yocum ¶ 7. In 2019, 23 Plaintiff stopped working for Defendant. Compl. ¶¶ 17- 24 18. 25 In his declaration attached to the Opposition, 26 Plaintiff asserts that he has “never received, saw, or 27 heard of the [DRP] letter . . . attached to Ms. Yocum’s 28 declaration prior to this [M]otion being filed.” Decl. 1 of Guillermo Bill Gonzalez ¶ 6, ECF No. 22-1. Plaintiff

2 further asserts that no one discussed Defendant’s DRP

3 with him and he never agreed to arbitrate his employment 4 disputes. Id. ¶¶ 7-8. This alone is insufficient to 5 show that Plaintiff did not receive the DRP packet. See 6 Castro v. Macy's, Inc., No. C 16-5991 CRB, 2017 U.S. 7 Dist. LEXIS 9925, at *9 (N.D. Cal. Jan. 24, 2017) 8 (holding that an employee’s “mere denial of receipt” of 9 an arbitration agreement was insufficient to show that 10 the agreement was not received in the mail). 11 Given that Plaintiff continued to be employed by 12 Defendant after receiving the 2004 updated DRP packet, 13 Plaintiff has accepted the DRP terms, and he has agreed 14 to arbitrate his employment disputes with Defendant. 15 See Cal. Labor & Workforce Dev. Agency v. Compucom Sys., 16 No. 2:21-cv-02327-KJM-KJN, 2022 U.S. Dist. LEXIS 133411, 17 at *6 (E.D. Cal. July 26, 2022) (“An employee consents 18 even if he does not sign the arbitration agreement or 19 otherwise affirmatively consent to the change.”). 20 b. The DRP Is Not Unconscionable 21 Plaintiff argues that the arbitration agreement 22 encompassed in Defendant’s DRP is unconscionable. Opp’n 23 at 9:15-15:17. “Under California law both procedural 24 and substantive unconscionability must ‘be present in 25 order for a court to exercise its discretion to refuse 26 to enforce a contract or clause under the doctrine of 27 unconscionability.’” Acevedo v. Russell Cellular, No. 28 1:20-cv-01440-, 2021 U.S. Dist. LEXIS 49300, at *23 1 (E.D. Cal. Mar. 16, 2021) (quoting Peng v. First

2 Republic Bank, 219 Cal. App. 4th 1462, 1469 (2013)).

3 i. Procedural Unconscionability 4 Plaintiff argues that the DRP is procedurally 5 unconscionable because it was given to Plaintiff on a 6 “take-it-or-leave-it” basis or it constituted an 7 adhesion contract in which Plaintiff had little ability 8 to bargain. Opp’n at 10:15-11:9. When assessing 9 procedurally unconscionability, “[t]he court focuses on 10 whether the contract was one of adhesion.” Soltani v. 11 W. & S. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir. 12 2001). “A contract of adhesion is defined as a 13 standardized contract, imposed upon the subscribing 14 party without an opportunity to negotiate the terms.” 15 Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1281 (9th 16 Cir. 2006). Here, Defendant does not argue that the DRP 17 is an adhesion contract. See Mot. at 19:9 (“[T]he DRP 18 Policy Manual represents an adhesion contract[.]”). 19 Therefore, there is at least some degree of procedural 20 unconscionability in the DRP. See Molina v. 21 Scandinavian Designs, Inc., No. 13-cv-04256 NC, 2014 22 U.S. Dist. LEXIS 55863, at *23 (N.D. Cal. Apr. 21, 2014) 23 (“[B]ecause the [a]rbitration [a]greement is an adhesion 24 contract offered to a person with little bargaining 25 power on a take-it-or-leave-it basis, the [c]ourt finds 26 that the [a]rbitration [a]greement contains a minimal 27 degree of procedural unconscionability.”); see also 28 Davis v. Kozak, 53 Cal. App. 5th 897, 907 (2020) 1 (“[A]dhesion establishes only a “low” degree of

2 procedural unconscionability.”)

3 ii. Substantive Unconscionability 4 “The substantive element of the unconscionability 5 analysis focuses on overly harsh or one-sided results.” 6 Baxter v. Genworth N. Am. Corp., 16 Cal. App. 5th 713, 7 724 (2017). When assessing substantive 8 unconscionability, courts look to see whether the terms 9 “are unreasonably favorable to the [more powerful] 10 party.” Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 11 1109, 1145 (2013). 12 Plaintiff argues that the DRP is substantively 13 unconscionable because the DRP requires Plaintiff to 14 first present his disputes to “Local Management Review,” 15 which will give Defendant a “sneak peak of his entire 16 case.” Opp’n at 11:24-12:9. However, the DRP similarly 17 requires Defendant to disclose information to Plaintiff 18 prior to arbitration. See Decl. of Marjorie Yocum, Ex. 19 1 at 3-5. Given the bilateral nature of the DRP’s 20 internal review mechanism, it is not one sided or 21 substantively unconscionable. See Harper v. Charter 22 Commc’ns., LLC, No. 2:19-cv-01749 WBS DMC, 2019 U.S. 23 Dist. LEXIS 218440, at *13-14 (E.D. Cal. Dec. 18, 2019) 24 (holding that since the requirements of an internal 25 review term in an arbitration agreement applied equally 26 to both the company and the employee, it was not one 27 sided). 28 Furthermore, Plaintiff argues that the DRP is 1 unconscionable because Plaintiff must proceed to

2 mediation and pay $50. Opp’n at 12:10-15. However,

3 Plaintiff will pay less proceeding through the DRP than 4 if Plaintiff paid an initial filing fee to litigate his 5 claims. See Colvin v. NASDAQ OMX Grp., Inc., No. 15-cv- 6 02078-EMC, 2015 U.S. Dist. LEXIS 149932, at *26 (N.D. 7 Cal. Nov. 4, 2015) (finding “no substantive 8 unconscionability because there is no evidence that the 9 [arbitration program] will require [the] [p]laintiff to 10 pay more than the initial filing fee.”). 11 Plaintiff also argues that the DRP is substantively 12 unconscionable because it limits Plaintiff’s ability to 13 conduct discovery. Opp’n at 13:13-26. However, 14 “[l]imited discovery rights are the hallmark of 15 arbitration.” Coast Plaza Doctors Hosp. v. Blue Cross 16 of Cal., 83 Cal. App. 4th 677, 689 (2000). Furthermore, 17 the DRP provides that the arbitrator can expand 18 discovery if the requesting party provides a good 19 justification to expand it. See Decl. of Marjorie 20 Yocum, Ex. 1 at 13. Here, the DRP allows for two 21 individual depositions and ten interrogatories. See id. 22 These limitations do not make the DRP substantively 23 unconscionable. See Abeyrama v. J.P. Morgan Chase Bank, 24 No. CV12-00445 DMG (MRWx), 2012 U.S. Dist. LEXIS 87847, 25 at *12 (C.D. Cal. June 22, 2012) (“While the arbitration 26 agreement normally allows only two depositions, such 27 limitations are generally legal if either party can ask 28 the arbitrator to expand discovery for good cause.”); 1 see also Maxson v. Beazer Homes Holdings Corp., No. SA

2 CV 17-0583-DOC (AFMx), 2017 U.S. Dist. LEXIS 225839, at

3 *13-14 (C.D. Cal. June 21, 2017) (holding that an 4 arbitration agreement which limited a party to ten 5 interrogatories was not substantively unconscionable 6 because the arbitrator was allowed to expand discovery 7 as appropriate). 8 Thus, Plaintiff has failed to establish that the 9 DRP is substantively unconscionable. Therefore, even 10 though the DRP may be somewhat procedurally 11 unconscionable, it is not substantively unconscionable, 12 and Plaintiff has not met his burden of showing 13 unconscionability. See Poublon v. C.H. Robinson Co., 14 846 F.3d 1251, 1260 (9th Cir. 2017) (“[T]he party 15 opposing arbitration must demonstrate that the contract 16 as a whole or a specific clause in the contract is both 17 procedurally and substantively unconscionable.”). 18 3. The DRP Encompasses the Disputes at Issue 19 Plaintiff does not dispute that the DRP applies to 20 his employment related claims in this Action. See 21 generally Opp’n. 22 Here, the DRP specifies that covered claims 23 include: “(1) involuntary terminations . . . when those 24 terminations are alleged to be discriminatory; (2) 25 [e]mployment discrimination and harassment claims based 26 on . . . disability; (3) retaliation claims; (4) 27 [c]laims relating to workplace accommodation due to 28 disabilities; [and] (5) [c]laims of violation of public 1 policy.” Decl. of Marjorie Yocum, Ex. 1 at 5.

2 Plaintiff asserts nine claims in his Complaint: (1)

3 disability discrimination; (2) age discrimination; (3) 4 failure to accommodate a disability; (4) failure to 5 engage in the interactive process; (5) retaliation; (6) 6 wrongful termination; (7) constructive discharge; (8) 7 violation of the California Family Rights Act; and (9) 8 failure to pay all wages due and owed at the time of 9 termination. See generally Compl. In general, 10 Plaintiff’s claims are work-related disability, 11 retaliation, and wrongful termination claims that 12 clearly fall within the DRP’s specified covered claims. 13 Thus, the Court finds that the DRP encompasses all the 14 claims at issue in this Action. See Mastrobuono v. 15 Shearson Lehman Hutton, 514 U.S. 52, 62 (1995) (“[D]ue 16 regard must be given to the federal policy favoring 17 arbitration, and ambiguities as to the scope of the 18 arbitration clause itself resolved in favor of 19 arbitration.”). Therefore, the Court GRANTS Defendant’s 20 Motion to Compel Arbitration. 21 4. Dismiss or Stay the Action 22 Having determined that the Parties’ disputes are 23 arbitrable, the Court next addresses whether to stay or 24 dismiss this Action pending completion of the 25 arbitration proceedings. Under the FAA, if the court is 26 satisfied that a dispute is referable to arbitration, it 27 “shall on application of one of the parties stay the 28 trial of the action until such arbitration has been had 1 in accordance with the terms of the agreement.”

2 9 U.S.C. § 3. The Ninth Circuit has held that,

3 “notwithstanding the language of § 3, a district court 4 may either stay the action or dismiss it outright when, 5 as here, the court determines that all of the claims 6 raised in the action are subject to arbitration.” 7 Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 8 1074 (9th Cir. 2014). All of Plaintiff’s claims are 9 subject to arbitration. Plaintiff did not argue for a 10 stay in the event the Court compelled arbitration of all 11 claims. See generally Opp’n. Defendant argued the 12 Court should either dismiss or stay the Action pending 13 arbitration. See Mot. at 22:17-28. Here, given that 14 all the claims in this Action are subject to 15 arbitration, the Court in its discretion DISMISSES the 16 Action without prejudice. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 III. CONCLUSION 2 Based on the foregoing, the Court GRANTS

3 Defendants’ Motion to Compel Arbitration and ORDERS the 4 Parties to arbitrate their disputes in accordance with 5 the terms of the DRP. This Action is DISMISSED without 6 prejudice. The Clerk of the Court shall close this 7 Action. 8 9 IT IS SO ORDERED. 10 11 DATED: April 18, 2023 /s/Ronald S.W. Lew HONORABLE RONALD S.W. LEW 12 Senior U.S. District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28