The Parties Failed To Initial The Jury Waiver, But They Did Sign A "Certification."
"What if neither party to an arbitration agreement places initials next to a jury waiver contained in the agreement, even though the drafter included lines for their initials?" That's the question presented in Martinez v. BaronHR, Inc., et al, B296858 (2/4 7/8/20) (Currey, Willhite, Collins). The Court concludes that it is of no legal consequence "[o]n the facts of this case," leading one to ask: what facts made the difference?
In this employee/employer dispute, the employer and employee failed to initial a jury waiver that was part of an arbitration agreement. Opposing the employer's effort to compel arbitration, the employee argued that those facts pointed to an intention to retain a jury, and thus, not to arbitrate. The trial court denied the employer's motion to compel arbitration.
The Court of Appeal, however, focused on a second part of the employment agreement, the so-called "certification." In the certification, which the parties did sign, the employee certified he had read, understood, and agreed to be legally bound by all the terms of the agreement, and further, "EMPLOYEE HAS NO RIGHT TO PURSUE CLAIMS AGAINST THE COMPANY IN COURT AND BEFORE A JURY, BUT ONLY THROUGH THE ARBITRATION PROCESS."
The employee's signature on the certification of the entire agreement trumped his failure to certify the jury waiver. As a result, the Court of Appeal reversed and remanded.
COMMENT: If this is the state of the law, wouldn't the employer have been better off drafting an agreement that did not require initialing the jury waiver, so long as the certification provision applied to the entire agreement and included the conspicuous capitalized second jury waiver? Legal drafting is notoriously "repetitious and redundant", and here, the result was a legal pothole.
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