A terminated employee is suing for unpaid wages, overtime, rest breaks etc. in unlimited civil court in CA. My defense is solid and she signed an agreement initially as an IC (she was later made an employee) with a dispute resolution clause agreeing to mediation, then arbitration in the event of a dispute. Yet she's gone straight to court. With 4 named defendants, the cost to file responses to the summons alone is over $1,700. That's if I do it without a lawyer. The point of arbitration to me is to avoid the costly legal battle when a dispute can be settled quickly. How can I be compelled to pay these fees to respond when she's already signed an agreement stipulating arbitration?
It is simple, but not that simple. One of the named defendants would have to file a noticed motion to compel arbitration. This would still require that defendant to pay the first appearance filing fee to the court. An entity defendant such as a corporation or LLC must be represented by an attorney to appear in litigation. However, an individual defendant can represent him or herself in pro per.
Moreover, the party seeking to compel arbitration must be a party to the agreement. The right to compel arbitration arises from the parties' contract and, as with other contractual rights, is subject to waiver. Such waiver may be express or implied from the parties' conduct. (See Code Civ. Proc., § 1281.2; Davis v. Blue Cross of No. Calif. (1979) 25 Cal.3d 418, 425.)
You can file a motion to compel arbitration. However, you should note that just because the employee signed an agreement stating they are an independent contractor doesn't necessarily make them one.
Furthermore, mediation and arbitration are not always cheaper than litigating a lawsuit in court.
A full consultation would be necessary to properly advise you.
Both Mr. Chen and Mr. Parikh give you complete answers. My comment is not to try to bring the motion without assistance of an attorney. Civil procedure is just not that simple when it comes to reserving a hearing date, making service, filing a reply brief if necessary, etc.
I agree with all of the other attorney's comments. I would also like to add that in addition to having to bring a motion to compel arbitration and pay the initial appearance fee, the judge will also likely require you to file an answer before considering the motion to compel arbitration. I was involved in a similar situation recently where the judge's order to compel arbitration was delayed because the defendant had not filed an answer.
