Candice Liening vs Covenant Care California, LLC et a

Case Number

24CV00436

Case Type

Hearing Date / Time

Mon, 06/10/2024 - 10:00

Nature of Proceedings

Motion: Compel Arbitration

Tentative Ruling

Candice Liening v. Covenant Care California, LLC, et al. 

Case No. 24CV00436        

Hearing Date: June 10, 2023                                                 

MATTER:                Defendants’ Motion To Compel Arbitration And Stay Judicial Proceedings

ATTORNEYS:        For Plaintiff Candice Liening: Jillian M. Fairchild, Fairchild Employment Law, P.C.

                             For Defendants Covenant Care California, LLC dba Buena Vista Care Center and Encinitas Nursing and Rehabilitation Center: Kathryn T. McGuigan, Kimberli A. Diggs, Ryan Malhan, Morgan, Lewis & Bockius LLP

TENTATIVE RULING:

The motion of defendants to compel arbitration is granted. Plaintiff’s claims against defendants shall proceed to arbitration. Further, this litigation shall be stayed pending the completion of arbitration.

Background:

On January 26, 2024, plaintiff Candice Liening (plaintiff) filed in this matter a complaint against defendants Covenant Care California, LLC (Covenant Care), Encinitas Nursing and Rehabilitation Center (Encinitas), and Buena Vista Care Center (Buena Vista) (collectively, defendants). As alleged in the complaint:

Covenant Care operates skilled nursing and residential care facilities in California which include Encinitas and Buena Vista. Plaintiff was hired by defendants as a nurse and began employment at Encinitas on August 13, 2022. In October 2022, plaintiff learned she was pregnant and provided Encinitas with a pregnancy verification on October 25, 2022. On November 3, 2022, plaintiff’s doctor provided a note with medical restrictions because plaintiff’s pregnancy was considered high-risk. Encinitas did not accommodate the restrictions articulated in the November 3, 2022, doctor’s note.

Plaintiff also witnessed an incident where an employee of Encinitas broke a patient’s finger and tried to cover it up. Encinitas told plaintiff to lie about this situation but plaintiff refused. Plaintiff made an anonymous call to the State of California Department of Public Health to report the incident. Encinitas learned that plaintiff made the anonymous report and was angry.

In October and November 2022, plaintiff was hospitalized at the emergency room three times for treatment related to her pregnancy which forced plaintiff to miss work due to the complications. Plaintiff returned to work on November 16, 2022, for her normal shift. On November 17, 2022, plaintiff was sent home and told that her contract was being terminated because Encinitas claimed plaintiff took Ambien from a cart. Plaintiff had a miscarriage in the days following her termination from Encinitas, which plaintiff believes was caused by the actions of Encinitas.

On March 29, 2023, plaintiff was hired to, and started, work at Buena Vista as a nurse. At the time, plaintiff was unaware that Buena Vista was also owned and managed by Covenant Care. Plaintiff was misclassified as an exempt employee.

On May 6, 2023, plaintiff learned that she was again pregnant and informed Buena Vista shortly thereafter. On July 3, 2023, plaintiff’s doctor provided a note stating that the pregnancy was considered high-risk and that plaintiff would need periodic accommodations including the ability to work remotely. When plaintiff provided the July 3, 2023, doctor’s note to Buena Vista, they became hostile regarding plaintiff’s conditions and restrictions.

On July 3, 2023, a Buena Vista administrator sent a letter to plaintiff regarding plaintiff’s absences from work and stating that plaintiff could not work from home. A few days later, the same administrator sent plaintiff a text message accusing plaintiff of not doing her job properly because plaintiff had missed work. Though the administrator stated that plaintiff could use sick or leave time if plaintiff was unable to report for duty, no further options such as a modified schedule and duties or a transfer were discussed to allow plaintiff to continue working without having to take pregnancy disability leave.

On July 19, 2023, plaintiff was forced to work while feeling ill. Because Buena Vista did not offer any accommodations or a transfer, plaintiff was forced to go on unpaid leave from July 19, 2023, until August 9, 2023.

When plaintiff returned from medical leave after August 9, 2023, Buena Vista employees nitpicked and micromanaged plaintiff’s work, and took over plaintiff’s responsibilities. On October 3, 2023, Buena Vista placed plaintiff on a Performance Improvement Plan (PIP) which Buena Vista claimed was due to attendance violations and substandard work performance by plaintiff.

In response to ongoing criticism and the PIP, plaintiff obtained another medical note dated October 17, 2023, which released plaintiff from work from October 16 through October 20, 2023, and which requested that plaintiff be permitted to work from home. Buena Vista refused to allow plaintiff to work from home and did not discuss accommodations or other alternatives such as transferring plaintiff or modifying her work duties. Buena Vista terminated plaintiff’s employment on October 23, 2023.

The complaint alleges fifteen causes of action: (1) pregnancy discrimination in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) (against all defendants); (2) failure to reasonably accommodate pregnancy disability (against all defendants); (3) failure to engage in the interactive process (against all defendants); (4) retaliation (against all defendants); (5) failure to prevent discrimination, harassment, and retaliation in violation of FEHA (against all defendants); (6) wrongful termination in violation of public policy (against all defendants); (7) intentional infliction of emotional distress (against all defendants); (8) failure to provide overtime compensation (against Covenant Care and Buena Vista); (9) failure to provide meal periods (against Covenant Care and Buena Vista); (10) failure to provide rest periods (against Covenant Care and Buena Vista); (11) failure to maintain required records (against Covenant Care and Buena Vista); (12) failure to furnish accurate itemized wage statements (against Covenant Care and Buena Vista); (13) failure to pay all wages due at discharge (against Covenant Care and Buena Vista); (14) failure to provide personnel file and payroll records upon request (against Covenant Care only); and (15) unfair and unlawful business practices (against all defendants).

On April 2, 2024, defendants filed a motion for an order compelling plaintiff to arbitrate the claims alleged in the complaint and staying the proceedings. In support of the motion, defendants submit the declaration of Cynthia Jordan (Jordan), who states that she began her employment with Covenant Care on March 23, 2015, as the Executive Director of the Shoreline Care Center. (Jordan Decl., ¶ 1.) Jordan further states that on April 13, 2020, she transferred to Buena Vista which is a skilled nursing facility in Santa Barbara, California. (Ibid.) To perform her duties and responsibilities as the Executive Director of Buena Vista, Jordan regularly accesses employment and personnel records for all current and former employees of Covenant Care. (Id. at ¶ 1.) As a result, Jordan is knowledgeable about the procedures and policies of Covenant Care for creating and maintaining the personnel files of current and former employees of Buena Vista. (Id. at ¶ 3.)

Jordan describes Covenant Care’s new-hire orientation during which new hires are presented with, among other things, a “Mutual Arbitration Agreement” (the arbitration agreement). (Jordan Decl., ¶ 4.) A signed copy of the arbitration agreement is placed in the employee’s personnel file and maintained in the ordinary course of business on-site at the worksite where the employee is assigned. (Ibid.) At Buena Vista, employee personnel files are stored and maintained in a secure filing cabinet or storage container in the office of the payroll director. (Id. at ¶ 5.) The files of active employees are kept in a locked cabinet inside the office of the payroll director. (Ibid.) Upon separation from employment with Covenant Care, an employee’s personnel file is placed in a filing box that can only be accessed through the locked office of the payroll director which is accessible only to payroll personnel, the director of staff development, and the executive director. (Ibid.)

Jordan’s review of the personnel file of plaintiff shows that plaintiff applied to work at Covenant Care on March 14, 2023, and was hired on March 29, 2023. (Jordan Decl., ¶ 6.) Jordan further states that plaintiff’s file contains the arbitration agreement with plaintiff’s signature and the date of March 29, 2023, among other documents which also bear plaintiff’s signature. (Id. at ¶¶ 6, 7 & Exh. A.) Jordan compared the signature on the arbitration agreement with plaintiff’s signature on all other documents in plaintiff’s personnel file. (Id. at ¶ 7; see also Exhs. B-G [redacted copies of plaintiff’s employment documents].) Based on Jordan’s review of these documents, it is Jordan’s opinion that the signature on the arbitration agreement is the same as the signature on all of plaintiff’s other employment documents, and that plaintiff signed the arbitration agreement. (Id. at ¶ 7.) Jordan states that plaintiff continued her employment with Covenant Care after she executed the arbitration agreement and other employment documents. (Id. at ¶ 8 & Exh. H.)

Defendants also submit the declaration of their counsel, Kimberli A. Diggs, who states that plaintiff has refused to stipulate to arbitration of the claims alleged in the present action. (Diggs Decl., ¶¶ 1-4.)

The motion is opposed by plaintiff.

Analysis:

Because arbitration is a matter of contract, “the threshold question presented by every petition to compel arbitration is whether an agreement to arbitrate exists….[¶] The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence an agreement to arbitrate a dispute exists. [Citations.] To carry this burden of persuasion the moving party must first produce ‘prima facie evidence of a written agreement to arbitrate the controversy.’ [Citations.] ‘If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then ... the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement.’ [Citations.] If the opposing party produces such evidence, then ‘the moving party must establish with admissible evidence a valid arbitration agreement between the parties.’ [Citation.] Despite the shifting burden of production, ‘[t]he burden of proving the agreement by a preponderance of the evidence remains with the moving party.’ [Citations.]” (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1120.)

Defendants contend that plaintiff signed the arbitration agreement attached to the Jordan declaration as Exhibit A when she was hired by Covenant Care on March 29, 2023, and that the arbitration agreement includes a broad and non-exhaustive list of covered claims and disputes which include those alleged in the present complaint. Defendants further contend that the arbitration agreement signed by plaintiff is governed by the Federal Arbitration Act, codified at 9 United States Code section 1 et seq. (the FAA). For this reason, defendants assert that the provisions of the FAA determine whether the present matter should be ordered to arbitration.

Parties to an agreement to arbitrate may “specify … the rules under which the arbitration will be conducted.” (Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 469.) “In accordance with choice-of-law principles, the parties may limit the trial court’s authority … under the [California Arbitration Act] by adopting the more restrictive procedural provisions of the FAA.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157; see also Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355 [“the parties may also voluntarily elect to have the FAA govern enforcement of the Agreement”].)

The arbitration agreement states that “the FAA shall govern the interpretation and enforcement of, and all proceedings” under the arbitration agreement and that the arbitration agreement, subject to exceptions that do not appear to be present here, “shall be governed by the laws of the State of California….” (Jordan Decl., Exh. A, ¶ 6.) These provisions do not, as defendants contend, expressly provide that the arbitration agreement itself is governed by the FAA. Rather, by its express terms, the arbitration agreement is governed by state law.

Alternatively, defendants present evidence to show that Covenant Care engages in interstate commerce by using mail, telephone, and internet networks to carry out its billing practices and order supplies and materials, that Covenant Care’s billings include out of state payors, and that Covenant Care advertises its services and recruits its employees out of state. (Jordan Decl., ¶ 2.) Plaintiff does not dispute this information and does not contend that the arbitration agreement is not governed by the FAA.

The FAA applies to contracts which evidence a transaction “involving commerce”. (9 U.S.C. § 2.) “[T]he pertinent question is whether the contract evidences a transaction involving interstate commerce, not whether the dispute arises from the particular part of the transaction involving interstate commerce.” (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101; see also Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56-57 [“it is perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’”].)

The undisputed evidence and information offered by defendants sufficiently demonstrates that the employment activity at issue in the present action substantially affected interstate commerce such that the arbitration agreement is subject to the FAA. (Bernhardt v. Polygraphic Co. of America (1956) 350 U.S. 198, 200–201 [FAA governs if the employee was engaging in activity that affected commerce].)

Though the FAA preempts state law that conflicts with its statutory purposes (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 637), to determine whether the parties have agreed to submit a dispute to arbitration, “ ‘we apply “general state-law principles of contract interpretation, while giving due regard to the federal policy in favor of arbitration by resolving ambiguities as to the scope of arbitration in favor of arbitration.” ’ [Citation.]” (Goldman, Sachs & Co. v. City of Reno (9th Cir. 2014) 747 F.3d 733, 742; see also Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701 [the “federal policy in favor of arbitration does not come into play … until a court has found the parties entered into a valid contract under state law”].) “While both the [FAA] and California law favor arbitration, a party is not required to arbitrate his or her claims absent consent.” (Costa v. Road Runner Sports, Inc. (2022) 84 Cal.App.5th 224, 233.)

The arbitration agreement includes language providing that the parties agree to arbitrate “any and all existing or future disputes, causes of action, claims or controversies between or among them (including claims by Employee against Employer’s affiliated entities, parents, subsidiaries, agents and/or employees) whether or not arising out of or in any way related to Employee’s recruitment by, employment with or termination or separation of employment from Employer.” (Jordan Decl., Exh. A. at ¶ 1.) Relevant here, the “claims or lawsuits” referenced in or covered by the arbitration agreement include claims for “breach of contract (express or implied); negligence (including damages caused by any negligence by Employee); … broken promises; …wrongful termination or constructive discharge; infliction of emotional distress; … incorrect, unpaid, overpayment or nonpayment of wages, commissions, bonuses, severance, and employee fringe benefits; … failure to pay wages for all hours worked; failure to pay overtime; failure to pay wages due on termination; failure to provide accurate, itemized wage statements; failure to provide breaks; failure to provide required terms and conditions of employment; entitlement to waiting time penalties; and/or any other claims involving wages, hours or conditions of work, unfair business practices, civil tort and employment discrimination/harassment, retaliation, and failure to accommodate (including claims brought under … [FEHA], the California Family Rights Act, and the California Labor Code, all as amended); and any claims arising under any other local, state, or federal statute, law, regulation, ordinance or common law.” (Ibid.)

Plaintiff ostensibly signed the arbitration agreement on March 29, 2023. (Jordan Decl., Exh. A at p. 4.) The language of the arbitration agreement provision describing covered claims is broad and includes the type of claims and the “lawsuit” alleged in the complaint. Therefore, the claims alleged by plaintiff in the complaint fall with the scope of the arbitration agreement. Accordingly, the burden shifts to plaintiff to identify a factual dispute as to the existence of an agreement to arbitrate and to produce evidence to challenge the authenticity of the arbitration agreement. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)

In her opposition to the motion, plaintiff does not offer any evidence, information, or reasoned argument to dispute that she signed the arbitration agreement on March 29, 2023, or that the signature on the arbitration agreement is not authentic. In addition, plaintiff does not effectively dispute that any claims which arise from or relate to plaintiff’s employment at Buena Vista from March 29, 2023, the same date plaintiff signed the arbitration agreement, through October 23, 2023, are encompassed within the scope of the arbitration agreement.

In the opposition, plaintiff distinguishes the period in which she was employed to work at Encinitas from the period in which she was employed to work at Buena Vista. Plaintiff argues that any claims which arose before March 29, 2023, or which arise from or relate to plaintiff’s employment at Encinitas from August 13, 2022, until November 17, 2022, are not encompassed within the scope of the arbitration agreement. In support of her argument, plaintiff submits a declaration stating that she was hired to work at Encinitas on August 13, 2022, through staffing company Medely, Inc. (Medely). (Liening Decl., ¶ 1.) Plaintiff also submits timecards transmitted to Medely while plaintiff was employed at Encinitas and a reminder from Medely regarding a shift at Encinitas. (Id. at Exh. 1.) Relying on the holding in Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208 (Vaughn), plaintiff contends that arbitration agreement cannot be enforced with respect to claims that arise from or relate to plaintiff’s employment at Encinitas through Medely and prior to the date she signed the arbitration agreement.

An arbitration agreement can apply retroactively to events or disputes occurring prior to its execution including in circumstances under which the parties are unaware of the dispute when the agreement to arbitrate is signed or litigation is pending when the agreement is executed. (Franco v. Greystone Ridge Condominium (2019) 39 Cal.App.5th 221, 229-230 (Franco) [applying arbitration agreement to “pre-hire” employment related claims existing before its execution]; Salgado v. Carrows Restaurants, Inc. (2019) 33 Cal.App.5th 356, 361-362 (Salgado) [applying agreement requiring arbitration of “all” claims to dispute occurring before agreement was signed]; Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 877 [“broad and specific” arbitration clause without any limitation in time applied retroactively to dispute occurring before its execution]; see also Code Civ. Proc., § 1281.)

In Vaughn, plaintiffs Monica Chatman (Chatman) and Evie Hall (Hall) (collectively, the Vaughn plaintiffs) began working at defendant Tesla, Inc.’s (Tesla) factory through staffing agencies. (Vaughn, supra, 87 Cal.App.5th at pp. 215-216.) Four months later, Tesla transmitted letters to the Vaughn plaintiffs offering them employment with Tesla under specified terms and stating a specific “first day of employment” date upon the Vaughn plaintiffs’ acceptance of Tesla’s offer. (Id. at p. 216.) The Vaughn plaintiffs electronically signed the offer letters from Tesla which included an arbitration agreement providing that all disputes “arising from or relating to” the Vaughn plaintiffs’ employment with Tesla would be resolved by arbitration. (Ibid.)

Sometime later, plaintiff Marcus Vaughn, who never signed the offer letter transmitted by Tesla further discussed above, filed a second amended class action complaint which included Chatman and Hall as named plaintiffs and in which causes of action were alleged against Tesla for racial harassment and discrimination under FEHA. (Vaughn, supra, 87 Cal.App.5th at p. 217.) Plaintiffs in Vaughn sought relief based on a joint employer theory with respect to periods during which they were employed by staffing agencies. (Ibid.)

Tesla moved to compel arbitration of the claims alleged by the Vaughn plaintiffs in response to which plaintiffs argued that they were not obligated to arbitrate claims based on conduct which occurred prior to the first day of employment stated in the offer letter of Tesla and while plaintiff were employed through a staffing agency. (Vaughn, supra, 87 Cal.App.5th at p. 217.) The trial court concluded that claims based on alleged wrongs which occurred prior to the first day of employment stated in Tesla’s offer letters and while plaintiffs were employed through staffing agencies did not fall within the scope of the arbitration agreements signed by Chatman and Hall. (Id. at pp. 217-218.)

In affirming the trial court’s order denying the motion of Tesla to compel arbitration, the court noted that the term “employment” as used in the arbitration provision at issue was clarified in Tesla’s offer letter as the period of direct contractual employment with Tesla which began on August 2, 2017, and not periods during which the Vaughn plaintiffs were employed by staffing agencies. (Vaughn, supra, 87 Cal.App.5th at pp. 219-220.) Based on this construction, the Vaughn court found that the parties had agreed to arbitrate only those claims that related to the Vaughn plaintiffs’ direct employment with Tesla and not claims that pre-dated the first day of employment stated in the offer letter of Tesla. (Id. at p. 220.) For this reason, the court found that the arbitration agreement at issue could not be applied retroactively to events occurring before the Vaughn plaintiffs were directly hired by Tesla. (Id. at pp. 216, 222 [also noting that claims based on pre-employment conduct were not “rooted” in the employment relationship because that relationship did not yet exist per the terms of the offer letter transmitted by Tesla to the Vaughn plaintiffs].)

The circumstances present in Vaughn are not analogous to the circumstances present in this action. For example, though plaintiff presents evidence that she was employed through a staffing agency during the time she worked at Encinitas, a fact which is not effectively disputed by defendants, the language of the arbitration agreement at issue here is broader than the arbitration provision at issue in Vaughn, which was limited to disputes “arising from or relating to” the Vaughn plaintiffs’ employment with Tesla. (See Vaughn, supra, 87 Cal.App.5th at p. 216.) The arbitration agreement here, by contrast, provides that plaintiff and Covenant Care agreed to arbitrate “any and all” existing or future disputes “whether or not” the dispute arises out of or relates to plaintiff’s employment with Covenant Care. It does not include similar language limiting the definition of plaintiff’s employment to a specific date as in Vaughn, or to a specific location.

The terms of the arbitration agreement at issue in the present action are more analogous to the arbitration provisions at issue in Franco and Salgado, which the court in those cases found either did not include language limiting their applicability to unaccrued claims or applied to “all” disputes relating to employment. (See Franco, supra, 39 Cal.App.5th at p. 224; Salgado, supra, 33 Cal.App.5th at pp. 360-361.) Because the arbitration agreement here is similarly not limited in time or scope with respect to plaintiff’s employment with Covenant Care, and as the claims arising from plaintiff’s employment at Encinitas had already arisen or accrued when plaintiff signed the arbitration agreement, it may be applied retroactively to claims which arose prior to the date plaintiff signed the arbitration agreement. (Franco, supra, 39 Cal.App.5th at p. 232; Salgado, supra, 33 Cal.App.5th at p. 361.) Plaintiff offers no additional reasoned argument to demonstrate why the broad language of the arbitration agreement does not govern claims which arose during or which relate to plaintiff’s employment at Encinitas notwithstanding that plaintiff was employed through Medely during that period.

Apart from the arguments further discussed above, plaintiff presents no further legal or factual argument to demonstrate that there does not exist a valid agreement to arbitrate the claims alleged in the complaint including those which arose during the period plaintiff was employed at Encinitas. Therefore, based on the language of the arbitration agreement between plaintiff and Covenant Care and information and evidence presented by the parties, the court finds that there exists a valid agreement to arbitrate the claims and disputes alleged in the complaint, notwithstanding whether the claims arose during or relate to plaintiff’s employment at Encinitas or Buena Vista. Accordingly, defendants have met their burden to prove the existence of a valid written agreement to arbitrate the present dispute.

With respect to the enforceability of the arbitration agreement, plaintiff asserts that its provisions require her to pay a portion of administrative and other fees of the arbitration forum. (See Opp. at p. 6, ll. 3-13.) For this reason, plaintiff argues, the arbitration agreement is substantively unconscionable.

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281; see also 9 U.S.C. § 2.) Contract defenses such as unconscionability may be applied to invalidate an agreement to arbitrate. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (OTO).) If a party opposing a motion to compel arbitration raises a defense to enforcement of an arbitration agreement, “that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

“The overarching unconscionability question is whether an agreement is imposed in such an unfair fashion and so unfairly one-sided that it should not be enforced.” (OTO, supra, 8 Cal.5th at p. 124.) “Unconscionability consists of both procedural and substantive elements. The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. [Citations.] Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided. [Citations.] A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be ‘so one-sided as to “shock the conscience.” ’ [Citation.]” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246-247 (Pinnacle).) Procedural and substantive unconscionability are evaluated on a “sliding scale”. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.)

Plaintiff offers no reasoned factual or legal argument to demonstrate that the arbitration agreement is procedurally unconscionable. (See, e.g., OTO, supra, 8 Cal.5th at p. 126, 128 [discussing the procedural unconscionability analysis]; Davis v. Kozak (2020) 53 Cal.App.5th 897, 907 [discussing evidence sufficient to demonstrate procedural unconscionability].) Therefore, plaintiff has not met her burden to produce and prove facts necessary to establish that the arbitration agreement is procedurally unconscionable.

“Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided.” (Pinnacle, supra, 55 Cal.4th atp. 246.) A substantive unconscionability analysis “ ‘ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as “ ‘ “overly harsh” ’ ” [citation], “ ‘unduly oppressive’ ” [citation] “ ‘so one-sided as to “shock the conscience” ’” [citation], or ‘unfairly one-sided” [citation] All of these formulations point to the central idea that the unconscionability doctrine is concerned not with “a simple old-fashioned bad bargain” [citation], but with terms that are “unreasonably favorable to the more powerful party.” ’ [Citation.]” (OTO, supra, 8 Cal.5th at pp. 129-130; see also Pinnacle, supra, 55 Cal.4th at p. 246 [“[a] contract term is not substantively unconscionable when it merely gives one side a greater benefit”].)

Though plaintiff asserts in a general and conclusory manner that the arbitration agreement improperly requires her to pay fees of the arbitral forum, plaintiff fails to cite to any specific provision in the arbitration agreement which imposes this requirement on plaintiff. Moreover, the express provisions of the arbitration agreement state that the fees of the arbitrator “and all other costs that are unique to the arbitration process shall be paid by” Covenant Care. (Jordan Decl., Exh. A, ¶ 7.) Because plaintiff has failed to cite a specific provision requiring her to pay arbitration fees and or to otherwise explain why any provision of the arbitration agreement improperly requires her to pay any fees in connection with the arbitration, plaintiff has failed to meet her burden to demonstrate that the arbitration agreement is substantively unconscionable.

Apart from the contentions further addressed above, plaintiff offers no further reasoned argument to demonstrate that the arbitration agreement is substantively unconscionable. Therefore, because there exists a valid and enforceable agreement to arbitrate the claims alleged in plaintiff’s complaint and because plaintiff has failed to demonstrate that the arbitration agreement is not enforceable, the court will grant the motion of defendants and order the parties to proceed to arbitration. In addition, the court will order this action stayed pending completion of the arbitration.

Defendants’ objections to plaintiff’s evidence:

The court will overrule the objections of defendants to the evidence submitted by plaintiff in support of her opposition to the motion.