Filed 7/27/21 Park v. Dr. Midas Medical Group CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
GINGER PARK, B301873
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 19STCV05213)
DR. MIDAS MEDICAL GROUP,
INC., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
Law Office of Chad Biggins and Chad Biggins for
Defendants and Appellants.
Law Office of Jonathan Ricasa and Jonathan Ricasa;
Briana Kim for Plaintiff and Respondent.
Plaintiff Ginger Park (plaintiff) filed a class action
complaint alleging wage and hour claims against her former
employer, Dr. Midas Medical Group, Inc. (Midas), Midas’s CEO
Han Tae Choe (Choe), and Youngjoo Hahn (collectively,
defendants). Defendants appeal from the trial court’s order
denying their motion to compel arbitration on the ground that the
purported agreement to arbitrate is unconscionable. We consider
whether defendants have furnished an adequate record to permit
review of the trial court’s order.
I. BACKGROUND
Plaintiff worked for Midas as a “consultant/store manager”
(plaintiff’s characterization) or “manager” (defendants’
characterization) between 2014 and 2018. In 2019, plaintiff filed
a putative class action against defendants alleging meal period
and rest break violations (Lab. Code, §§ 226.7, 512), minimum
wage and overtime violations (Lab. Code, §§ 510, 1194, 1198),
failure to provide accurate itemized wage statements (Lab. Code,
§§ 226, 1174), failure to timely pay final wages (Lab. Code,
§§ 201-204), and violation of the Unfair Competition Law (Bus. &
Prof. Code, § 17200 et seq.).
About six months after plaintiff filed her complaint,
defendants moved to compel arbitration. In a declaration
accompanying the motion, CEO Choe explained defendants were
initially “unable to locate [plaintiff’s] employment agreement
2
because it was not in her employee file,” but had “recently” found
it in a filing cabinet.1
The employment agreement consists of eight pages
numbered one through five and seven through nine. Neither
party discusses the absence of a page six, but this appears to be a
missing page rather than a pagination error.
Park’s name is signed on the first and last pages of the
agreement, though she filed a declaration stating she “do[es] not
recall signing” it. Several other pre-printed lines on the
agreement remain blank, including lines for the date of the
agreement, plaintiff’s position and salary, and the signature of a
representative of Midas.
Section 11 of the agreement, printed in bold type, runs from
page seven to page eight and states: “RESOLUTION OF
DISPUTES. THE EMPLOYEE AND THE COMPANY AGREE
THAT IN THE EVENT ANY DISPUTE ARISES CONCERNING
THE CONSTRUCTION, INTERPRETATION, OR
ENFORCEMENT OF ANY TERM OR PROVISION OF THIS
AGREEMENT OTHER THAN SECTION (7) OF THIS
AGREEMENT, OR ANY OTHER COMPLAINT, GRIEVANCE,
OR ALLEGED UNFAIR, IMPROPER, DISCRIMINATORY, OR
ILLEGAL ACTION BY THE COMPANY, INCLUDING, BUT
NOT LIMITED TO ALLEGATIONS OF DISCRIMINATION,
HARASSMENT, INCLUDING SEXUAL HARASSMENT,
WORKERS’ COMPENSATION[,] RETALIATION,
WHISTLEBLOWER RETALIATION, DEFAMATION,
1
Defendants did not mention the purported arbitration
agreement in the initial joint status conference report filed about
two months after plaintiff commenced this action.
3
VIOLATION OF PUBLIC POLICY OR ANY LAW, OR ANY
CLAIM UNDER THE CALIFORNIA CIVIL RIGHTS ACT, THE
REHABILITATION ACT OF 1973, TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, THE OLDER
WORKER BENEFIT PROTECTION ACT, THE AMERICANS
WITH DISABILITIES ACT, THE FAIR LABOR STANDARDS
ACT, THE FAMILY AND MEDICAL LEAVE ACT, OR ANY
OTHER FEDERAL OR STATE STATUTE, OR LOCAL
ORDINANCE, OR ANY CLAIM FOR EMPLOYMENT
DISCRIMINATION, THE EMPLOYEE AND THE COMPANY
SHALL SETTLE THE DISPUTE BY ARBITRATION IN
ACCORDANCE WITH THE UNITED STATES ARBITRATION
ACT (9 U.S.C. § 1 ET SEQ.) AND THE RULES OF THE
AMERICAN ARBITRATION ASSOCIATION, WHICH ARE
PUBLICALLY AVAILABLE ON ITS WEBSITE
WWW.ADR.ORG. THE ARBITRATOR SHALL HAVE THE
AUTHORITY TO AWARD ANY REMEDY OR RELIEF THAT A
COURT OF COMPETENT JURISDICTION COULD ORDER OR
GRANT, INCLUDING, WITHOUT LIMITATION, SPECIFIC
PERFORMANCE OF ANY OBLIGATION CREATED UNDER
THIS AGREEMENT, THE ISSUANCE OF AN INJUNCTION
OR OTHER PROVISIONAL RELIEF, OR THE IMPOSITION OF
SANCTIONS FOR ABUSE OR FRUSTRATION OF THE
ARBITRATION PROCESS. ARBITRATION HEREUNDER IS
LIMITED TO INDIVIDUAL CLAIMS AND CANNOT BE
BROUGHT ON A CLASS BASIS.”
As reflected in the quoted text, the arbitration provision
excludes disputes concerning section seven of the agreement.
Section seven is titled “Covenants” and includes subsections 7.a
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(“Preliminary Statement”), 7.b (“Non-Solicitation”), 7.c
(“Confidentiality”), 7.h (“Remedies”), and 7.j (“Survival”).
Subsection 7.c begins on page four and continues to page five—
where subsection 7.c.iii.2 ends in a semicolon and no text
immediately follows. Instead, subsection 7.h begins on page
seven. Summarized very generally, section seven prohibits
former employees from soliciting Midas’s employees and
customers for a period of one year and from using or disclosing
confidential business information or trade secrets for a period of
two years.
Section 12 of the employment agreement provides that, “in
the event any litigation or similar proceeding . . . is commenced”
involving an alleged breach of the agreement, the prevailing
party is entitled to “all costs and expenses, including, without
limitation, attorney’s fees, court costs, and cost [sic] of experts
and investigation, whether at trial, upon appeal, or during
investigation . . . .”
Plaintiff opposed defendants’ motion to compel arbitration
on several grounds, including the ground that defendants could
not establish the existence of a valid contract and, in any case,
the employment agreement’s arbitration provision is
unconscionable. The trial court denied the motion to compel.
The court’s reasoning is not reflected in its minute order,2 and
2
In pertinent part, the minute order is quite brief: “The
matter is called for hearing. [¶] The Court has reviewed the
documents submitted by counsel. [¶] The Motion to Compel
Arbitration is heard and argued. [¶] The Court after reviewing
and considering all moving party and opposing party papers, and
arguments of counsel, makes the following ruling: [¶] The
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defendants did not request a statement of decision. The record
on appeal does not include a reporter’s transcript from the
hearing on defendants’ motion or a settled or agreed statement
concerning the reasons for the court’s ruling.
II. DISCUSSION
There is not much we can do with this case. Defendants
have the burden to affirmatively show error on appeal and we are
a court of review (at least for appellate proceedings), not a court
of first resort. Defendants provide us with no reporter’s
transcript or suitable substitute that would document the
proceedings at the hearing on the motion to compel arbitration,
and we have no clue as to the trial court’s reasons for the ruling it
made. The defect is fatal and requires affirmance.
“[T]he cardinal rule of appellate review [is] that a judgment
or order of the trial court is presumed correct and prejudicial
error must be affirmatively shown.” (Foust v. San Jose
Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187, citing
Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also
Ballard v. Uribe (1986) 41 Cal.3d 564, 574 (plur. opn. of Grodin,
J.).) The trial court’s rationale for denying defendants’ motion to
compel arbitration is not reflected anywhere in the record, and
without anything to memorialize all that transpired at the
hearing on the motion, defendants cannot demonstrate reversible
error. (See, e.g., Rhule v. WaveFront Technology, Inc. (2017) 8
Cal.App.5th 1223, 1229, fn. 5 [when written rulings are “quite
succinct,” as the trial court’s minute order is here, “a reliable
Motion to Compel Arbitration filed by Youngjoo Hahn, Han Tae
Choe, Dr. Midas Medical Group, Inc. on 08/13/2019 is Denied.”
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record of what transpired at the hearing[ ] is indispensable” for
appellate review].) For all we know, the trial court might have
found there was no proper showing of the authenticity of the
purported arbitration agreement and denied the motion on that
basis—a determination we would review for abuse of discretion,
which is not possible in this case on the inadequate appellate
record defendants have furnished. (People v. Flinner (2020) 10
Cal.5th 686, 727; Southern California Gas Co. v. Flannery (2016)
5 Cal.App.5th 476, 483; Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 846.) In short, error has not been
affirmatively shown.
DISPOSITION
The order denying defendants’ motion to compel arbitration
is affirmed. Plaintiff shall recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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