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Fischer v. Families For Children2/4/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Richard J. Fischer filed a civil suit against defendants Families for Children, Inc. (Families for Children), Ursula DeVere, and Minh Van Pham alleging wrongful termination. Defendants filed a motion for summary judgment based upon plaintiff's failure to exhaust his arbitral remedy. The trial court granted the motion. Following the Supreme Court's decision in Armendariz v. Foundation Health Care Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz), plaintiff made a motion to vacate the summary judgment. The trial court granted the motion based on Armendariz. We affirm.
BACKGROUND
DeVere is the Executive Director of Families for Children. Plaintiff began working for Families for Children on February 4, 1997, as a financial officer and bookkeeper. On February 4, 1997, plaintiff signed an employment contract containing a brief arbitration agreement. He signed a revised version of the employment contract on April 6, 1998. The revised contract contained the more detailed arbitration agreement at issue in this appeal.
The employment contract consists of terms to which plaintiff agrees. Almost every paragraph begins with "I agree," referring to plaintiff. Nowhere does the contract purport to bind Families for Children to any obligation, although it states that Fischer's annual salary will be $31,200 and that he may terminate his employment at any time.
The arbitration provision states: "I agree that any claim or controversy arising out of or relating to employment or termination of employment which cannot be resolved by mutual agreement shall be settled by binding arbitration in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association." After a one-year limitation on actions, the provision continues: "I agree that the exclusive remedy in such arbitration shall be limited to a monetary award not to exceed either: [ ] the amount of wages I would have earned from the date of my termination to the date upon which the arbitration hearing begins, less any interim earnings, or [ ] the amount of wages I would have received for one year from the date of my termination, less any interim earnings, whichever is less."
After the arbitration provision, the contract contains a waiver of remedies on the part of Fischer: "I agree that I shall not be entitled to any other remedy, at law or in equity, including, but not limited to, reinstatement, other monetary damages, punitive damages, and/or injunctive relief. By signing this agreement, I agree that I waive any right to file a lawsuit against EMPLOYER relating to such claim or controversy and I agree that arbitration shall be the sole and exclusive remedy for resolving any claim or controversy arising out of or relating to employment or termination of employment."
Finally, the contract contains a provision regarding the costs of arbitration: "I agree that the Prevailing Party in any arbitration action as specified above shall be entitled to payment of reasonable attorney fees and costs from the non-prevailing party. The non-prevailing party shall also be required to pay all fees and costs associated with the arbitrator's services. All such fees and costs will be decided by the arbitrator as part of the arbitration award."
On February 19, 1999, DeVere introduced Van Pham to plaintiff as an applicant for the
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