Reader Friendly Brief of Michael Josephson Asking Court of Appeals to Reverse Ruling Forcing the Josephsons into a secret, unfair arbitration (Filed 10/1/14)

Edited

[TO MAKE THE ARGUMENTS MORE READER FRIENDLY TO NONLAWYERS CERTAIN PROCEDURAL PORTIONS OF THE DOCUMENT HAVE BEEN DELETED AND THE STATEMENT OF FACTS HAS BEEN PUT BEFORE THE STATEMENT OF THE CASE. THE COMPLETE WRIT AS FILED IS POSTED AT:  ]

[Many of the actions forming the basis of the plaintiffs’ multiple claims were directed at Michael Josephson and separately and significantly caused him personal injury.  During the course of defendants’ efforts to remove plaintiffs from the court’s jurisdiction, defendants raised the issue of a possible conflict of interest between Michael Josephson and the other three plaintiffs. Thereupon, the parties decided that both Anne and Michael should have separate counsel. Michael Josephson, a former attorney, represented himself and Charles harder represented Anne, C. and M. Josephson.  On all issues all plaintiffs are in unison and working closely together.]

_______________________

2nd. Civil Case No. ______________                          STAY REQUESTED

(Los Angeles County Super. Ct. No. 122612)

(The Honorable Gerald Rosenberg; Dept. K; (310) 260-3501)

 

IN THE COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

__________________________

MICHAEL JOSEPHSON, Petitioner,

v.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent.

___________________________

ELIZABETH ENGLISH, BARBARA BRUSER, MEGAN CALLAWAY, JUSTIN CHANG, STEPHANIE DARROW, SUZIE DORAN, BETH FRIEDMAN, ANN GIANOPULOS, MARK GORDON, CAROLINE GRAINGE, CATHY HELM, MICHAEL HESLOV, KATHY KENNEDY, DEBBIE LEHMAN, SCOTT LORD, JONATHAN LURIE, FRANK MARSHALL, RAY MICHAUD, CATRICE MONSON, BARBARA NATTERSON HOROWITZ, HILLARY NEWMAN, JOHN OHANESIAN, KAREN RICHARDS SACHS, VICTORIA SHORR, JODY SIEGLER, ANA SERRANO, and RON STONE,

Real Parties in Interest.

___________________________

PETITION FOR WRIT OF MANDATE, PROHIBITION OR OTHER APPROPRIATE RELIEF

­­­­­­­­­­­­Michael Josephson In Pro Per

______________________

 STATEMENT OF FACTS

Petitioner Michael Josephson and his two daughters, C. Josephson (Child 1) and M. Josephson (Child  2), who attended the Archer School for Girls (“ARCHER”), a private single-sex middle school and high school,  and the childrens’ mother Anne Josephson, are all plaintiffs in the underlying action against ENGLISH and the members of the BOT, the Real Parties in Interest.  Ex. B (Compl. ¶¶ 1–3).

In 2009, during a meeting between ENGLISH and Petitioner (in his role as president of the Josephson Institute of Ethics), ENGLISH had asked Petitioner to conduct a survey of attitudes and behavior of Archer students.  Ex. B (Compl. ¶ 79).  Petitioner agreed to do so without charge based on the understanding that the data would be shared with parents, students, faculty and the Board to stimulate discussion and enhance ARCHER’s character development strategies.

Petitioner conducted the survey and prepared a report that revealed a high rate of cheating, drinking and drug use, ENGLISH reneged on her commitment to share the information with parents, faculty and students and Petitioner was asked to not reveal the data.

Petitioner reluctantly agreed but when ENGLISH learned he had been asked to deliver a program for the Archer Dads organization and that he was conducting a survey for that program, she concluded he would collect and reveal data similar the information included in the report on the survey she commissioned.

Based on completely erroneous assumptions that she made no effort to verify, ENGLISH, in the words of Archer Dad’s president, “ambushed” Petitioner with conference call attended by several Board members.  Ex. B (Compl. ¶¶ 78-79).  During that call ENGLISH rebuked, insulted and sought to intimidate Petitioner, accusing him of being unprofessional and lacking integrity in conducting another survey without her permission.  Id.

In a tirade that lasted for more than an hour, ENGLISH disregarded Petitioner’s attempts to correct her false assumptions about the nature of the survey and the circumstances under which it was created and expressed his own outrage at ENGLISH’s abusive tactics and authoritarian demands and he insisted that the president of the Archer Dads group be included in the conversation. He confirmed that ENGLISH’s disrespectful and defamatory accusations were wrong and irresponsible. As a result of this interaction, ENGLISH formed a deep animosity for Petitioner later expressed with retributive actions against his daughters.

In December 2013, Child 1, an excellent 12th grade student who received early admission to Barnard College, engaged in a momentary and minor act of rudeness during a class session.  Id.  (Compl. ¶¶ 1, 7).  As she was involved in a similar act of rudeness several months before, it was determined that she should be subjected to a student hearing, primarily designed to shame the student.  Id.  (Compl. ¶ 11).

When Child 1 expressed to her parents a deep and growing anxiety about this particular form of discipline, Michael Josephson and his wife Anne (who was then a member of the Board of Trustees) supported the decision that Child 1 should receive some discipline for her actions but, consistent with past practices and the ARCHER tradition on collaborating with parents, asked that some less traumatic alternative form of discipline be implemented.  Id.  (Compl. ¶¶ 12–15, 59).

Motivated by long-held malice against Petitioner Michael Josephson relating to a confrontation about an unrelated matter five years before, ENGLISH ignored the evidence of special circumstances offered by Child 1 and her parents, refused to collaborate or discuss her decision and insisted that Child 1 be subjected to what was effectively a public shaming ritual in which Child 1 would be brought before a tribunal of fellow students and faculty in a trial setting.  Id.  (Compl. ¶¶ 12–53, 72–80).

As Child 1’s anxiety built, Parents sought a psychologist’s opinion on the sincerity and severity of the growing phobia.  Id.  (Compl. ¶¶ 12­–13, 21–22, 25, 34, 42).  The psychologist submitted a report, shared with ENGLISH, indicating that the phobia was real and serious and that the process would be severely harmful to Child 1’s mental health.  Id.  (Compl. ¶¶ 25, 34, 42).  Again, Parents sought an alternative discipline.  Id.  (Compl. ¶ 26).  Knowing it would cause great and lasting emotional distress to Child 1 and to Michael Josephson, ENGLISH ignored the school’s tradition of collaborative non-coercive discipline and sound educational practices, and she refused to consider or discuss any alternative, ignoring the Parents concerns and the psychologist’s warning.  Id.  (Compl. ¶¶ 25–26, 50–53, 59).  To coerce compliance, she imposed an unauthorized and improper suspension with the edict that Child 1 would not be permitted to attend school again or take part in any student activities (she had been co-captain of the dance troupe and co-director of an upcoming major performance) until she participated in the shaming ritual.  Id.  (Compl. ¶¶ 7, 31).  The members of BOT were individually informed and notified of this decision in a plea by Petitioner asking them to reverse or modify the decision to mitigate the harm already caused, but they approved and/or ratified Ms. English’s action, knowing of the consequences.  Id.  (Compl. ¶¶ 106–110).  Several directly participated in the decision.  Id.  (Compl. ¶¶ 43, 50, 101).

Child 1’s psychologist confirmed that she has a disability that required that she could not participate in the Honors Educational Council / public shaming discipline insisted upon by Real Parties in Interest.  Ex. F (FAC ¶¶  112, 126).  Real Parties in Interest knew about Child 1’s disability but insisted on the public shaming discipline anyway, and eventually effectively expelled Child 1 from school and barred her from participating in school activities or coming to campus as a result.  Id. (FAC ¶¶ 113, 127).

The school’s action devastated Child 1, who, for personal reasons previously disclosed to ENGLISH, did not feel able to undergo the process demanded by ENGLISH. Id.  (Compl. ¶¶ 53, 81).

Despite the fact that school rules gave her discretion to waive the student hearing and devise other means to accomplish a legitimate disciplinary goal and a long-standing tradition of collaborating with parents to determine the most effective form of discipline and an oft-stated commitment to the principle of non-coercive discipline, ENGLISH escalated the trauma by refusing to consider or discuss alternatives and, instead, informed Child 1 that she would not be permitted to attend classes, participate in senior activities or graduate with her class.  Id.  (Compl. ¶¶ 7, 17, 20, 31, 48–53, 58–59).

Not satisfied with ruining the senior year of Child 1, ENGLISH and the BOT decided to take revenge on the Parents for challenging their authority, and they then turned their attention to punishing Child 2, a fifteen year old who had nothing to do with the incident for which Child 1 was disciplined and nothing to do with the conduct of her Parents in objecting to the archaic discipline that ENGLISH and the members of the BOT sought to impose on Child 1.  Id.  (Compl. ¶¶ 54–70).  On the grounds that Petitioner’s efforts advocating on behalf of Child 1 demonstrated a lack of support for ENGLISH’s decisions, ENGLISH, in a blatant demonstration of arbitrary power, and in direct collaboration with certain members of the BOT, notified Anne Josephson, and subsequently Child 2, that Child 2 would not be permitted to complete her education at Archer and she would not be permitted to re-enroll.   Id.  (Compl. ¶¶ 54, 60, 70, 73–74).  Child 2 had recently come out as openly gay and was dealing with the psychological effects of that decision, a fact known to ENGLISH (as it was conveyed to her by Anne Josephson).  Id.  (Compl. ¶¶ 54–55); Ex. F (FAC ¶43).  Real Parties in Interest effectively expelled and banished Child 2 from ARCHER, at a time she was dealing with the stress and psychological burdens of coming out as gay.  Ex. B (Compl. ¶¶ 54–55, 70, 132–133); Ex. F (FAC ¶ 43).

The original complaint contains a complete record of all of Petitioner’s communications with ENGLISH about this matter (there was only one meeting and that was tape recorded by defendants).  Id.  (Compl. ¶¶ 33, 35, 42–49, 81–82, 90, 91, 94).  There is nothing in any of these communications to justify ENGLISH concluding that Petitioner acted disrespectfully at all, let alone in a manner so serious as to conclude that he irreparably damaged the school-parent relationship justifying the exile of all Josephsons from the school.  Id.

To top it off, Real Parties in Interest, the day before both Josephson children were scheduled to attend the graduation ceremonies of their best friends, were barred from attending school functions or even stepping foot on campus to see their friends or teachers.  Ex. F (FAC ¶ 69).  The ban even included two other Josephson children who had already graduated from the school.  Id. 

Despite an extensive array of respectful communications to ENGLISH and the members of the BOT seeking less dramatic alternatives, ENGLISH, with the explicit and knowing support of members of the BOT, continued to ignore fundamental principles of respect and educational professionalism by several additional intentionally hurtful acts.  Ex. B (Compl.  ¶¶ 73–74); Ex. F (FAC ¶¶ 68–69).  ENGLISH even told Child 2 that she should blame her father for her exclusion from the school because he opposed her decision and refused to accept her authority.  Ex. F (FAC  ¶ 63).

Real Parties in Interest members of the BOT, Barbara Bruser, Barbara Horowitz, Cathy Helm, and Scott Lord, personally participated in discussions and decisions regarding the exclusion of Child 1 and Child 2 from ARCHER.  Ex. B (Compl. ¶¶ 50, 73).

Prior to the conduct that is the basis of the underlying action, defendant members of the BOT knew of should have known of incidents where ENGLISH abused the discretion and authority granted her by the board, including arbitrarily and capriciously creating, construing and implementing policies that unfairly, improperly and unlawfully caused injury to students and parents.  Id. (Compl. ¶ 102).

Each defendant member of the BOT failed to take any action to establish effective oversight or require the creation of policies, procedures, guidelines or other internal controls to protect students and parents, including plaintiffs, and further failed to review, correct and hold ENGLISH accountable for her improper actions.  Id. (Compl. ¶¶ 103, 105).

On April 29, 2014, Petitioner sent to each Real Party in Interest member of BOT a letter summarizing the Josephson family’s grievances along with an extensive memorandum. The letter and memorandum provided detailed documentation of the nature and scope of English’s actions and the harm caused thereby and notified them of severe impending harm that would be caused if the board failed to mitigate the severe emotional distress resulting from decisions to prevent Child 1 from participating in senior activities with her friends and teachers and graduating with her class and coerce Child 2 and her parents to find a new school and subject her, as an openly gay female, to social and emotional trauma.  Id. (Compl. ¶ 106).

The letter also called on each member of the BOT to: a) repudiate, or cause English to reverse, those decisions before they caused additional harm and informed them that a failure to do so would constitute ratification of those actions, b) demonstrate due diligence and meet their duty of care by conducting a thorough, independent investigation of plaintiffs detailed, documented claims, c) meet their obligations arising from the duty of care by establishing internal controls, including guidance, policies and procedures to detect, prevent or promptly and properly ameliorate or mitigate harm caused by the unlawful, unethical and inappropriate actions of English or other employees of Archer.  Id.

STATEMENT OF THE CASE

Petitioner Michael Josephson[1] seeks relief from this court in the form of: 1) a ruling to abate arbitration proceedings improperly commenced by the defendants Elizabeth English (ENGLISH), head of school at the Archer School for Girls (ARCHER) and individual members of the school’s Board of Trustees (BOT) in the underlying action; and 2) an order vacating the trial court’s ruling compelling that all his claims be subjected to binding arbitration.

On August 27, 2014, Respondent Court entered an order dismissing ARCHER and the BOT as an entity pursuant to Petitioner’s and the other plaintiffs’ request.  Petitioners also sought leave from Respondent Court to file a First Amended Complaint (FAC).  The court denied the request to lift the stay in proceedings to allow filing of the FAC, indicating he would rule on the request at a subsequent time.  (The original complaint is attached as Ex. B and the FAC as Ex. F; Respondent Court’s order is attached as Ex. J).  Petitioner contends this was a prejudicial error as it prevented the court from considering whether the revised allegations and three new causes of action were arbitrable.

Both the original complaint and the FAC include separate tort causes of action against ENGLISH and BOT seeking compensation and exemplary damages for emotional injuries caused by intentional, malicious, and reckless actions committed by Real Parties in Interest.  Petitioner contends these actions were motivated by personal animosity and vindictiveness and were designed to retaliate against and punish him relating to an incident in 2009 which ENGLISH perceived as a challenge to her authority.  Ex. B (Compl. ¶¶ 72–80).  These include:

1) Seeking to discipline Petitioner’s daughter, Child 1, for a momentary and minor act of rudeness to a teacher,[2] by subjecting her to a traumatic shaming ritual (a mock trial before a dozen peers and faculty) in direct disregard of:  (a) ARCHER’s established policy of collaboration with parents; (b) the employment of only non-coercive discipline; and (c) the professional opinion of a licensed psychologist that the discipline prescribed by ENGLISH and ratified by the BOT would cause lasting and severe mental harm.[3]  Ex. B (Compl. ¶¶ 8, 11–15, 25–26, 34, 50, 52–53, 59, 101, 106, 108).

2) Imposing an unlawful suspension on Child 1, preventing her from attending classes or participating in school activities until she subjected herself to the shaming ritual.  Id. (Compl. ¶ 31).

3) Subjecting Child 1 to humiliation and intense emotional pain by publicly ejecting her from the school to enforce the improper suspension. Id. (Compl. ¶¶ 37–41).

4) Forcing Child 1 to seek unwanted, unnecessary and clinically unjustified “medical leave” under threat that ENGLISH would notify the Barnard College[4] that she was suspended, thereby jeopardizing her status with the college.  Id. (Compl. ¶¶ 50, 81).

5) Imposing such onerous and unreasonable conditions on Child 1 that she was forced to withdraw and prohibited from receiving her diploma from ARCHER and participating in graduation ceremonies.  Id. (Compl. ¶ 7, 50, 53).

6) Terminating the right of Child  2, a 10th grader, from continuing her education at ARCHER on the stated grounds that Petitioner’s advocacy on behalf of Child 1 irreparably damaged the parent-school relationship (with no supporting evidence or justification) permitting ENGLISH to separate the entire Josephson family from the school.  Id. (Compl. ¶¶ 69–72, 80–87).

7) Formally banning Petitioner, Child 1, Child  2 and Anne Josephson from setting foot on the ARCHER campus for any reason, and as further demonstration of spitefulness, the ban also included two other Josephson daughters who had previously graduated from ARCHER and had nothing at all to do with the matter. This ban was calculated to, and did in fact, exacerbate the shame and emotional injury of petitioner and the other plaintiffs as it prevented Child 1 and Child 2 from attending the graduation ceremonies of their Archer classmates.[5]  Ex. F (FAC ¶ 69).

Additional Causes of Action

Both the original complaint and the FAC contain Petitioner’s claims that ENGLISH and the BOT committed professional malpractice and further violated California law (California Civil Code section 52.1) by seeking to intimidate him from asserting his Constitutional rights to defend his daughters from their unlawful, unethical and unprofessional actions.  Ex. B (Compl. ¶¶ 122–127, 135–139); Ex. F (FAC ¶¶ 93–99, 107-110).

Finally, both the original complaint and the FAC allege that ENGLISH and the BOT unlawfully interfered with Petitioner’s personal relations with his daughter, Child 2, who was told by ENGLISH (in an apparent attempt to drive a wedge between Petitioner and his daughter) that her right to complete her education at ARCHER was being terminated because of his behavior (i.e., his requests to ENGLISH and the BOT that they impose alternative, less traumatic discipline on his daughter, Child 1).  Ex. B (Compl. ¶¶ 56–57, 128–134); Ex. F (FAC ¶¶ 63, 100–106).

New causes of Action

In addition to these causes of action, Petitioner’s FAC added three additional causes of action, which he contends are not and should not be considered arbitrable:  (1) violation of the Unruh act; (2) violation of Civ. Code § 3523; and (3) violation of the Americans with Disabilities Act.  Ex. F (FAC ¶¶ 111–130).

The Mandatory Arbitration Provision

The standard form Enrollment Agreements were presented to Petitioner, and all parents, as a “take it or leave it” precondition to enrollment.  Ex. E (Opp. at 3:8–9).  Nobody at Archer offered to allow or permit any modification of the terms of the Enrollment Agreements or to negotiate any term therein.  Id.

Petitioner contends that he and all other parents were led to understand that none of the terms of the contract, including the arbitration clause, were negotiable and that the Head of School viewed any challenge to her policies as a lack of support which could justify denial of admission or re-enrollment.

Neither ENGLISH nor the BOT ever contended nor offered any evidence disputing Petitioners’ claim that the enrollment contract was nonnegotiable. They offered no evidence showing that Archer ever negotiated or agreed to change the arbitration clause with any parent or enrollee nor did they contend they were willing to do so.[6]

Neither ENGLISH nor the BOT, the Real Parties in Interest, are signatories to the enrollment agreement; neither the Petitioner nor other plaintiffs ever signed a contract with any of the Real Parties in Interest; and none of the remaining defendants in the case submitted any evidence to the trial court demonstrating an agency relationship with ARCHER that would give them the right to force Petitioner to arbitrate his claims against them.  Ex. A.

The extensive, take-it or leave-it adhesion contract Petitioner was forced to sign as a condition of the enrollment of Child 1 and Child  2 included an arbitration provision which reads in pertinent part:

Any actionable legal controversy or claim arising under or relating to this Agreement or its breach, including any dispute relating to Student’s enrollment at Archer or to Student’s completion of the academic year at Archer, and including without limitation the determination of the scope or applicability of this agreement to arbitrate shall be settled solely by final and binding arbitration before a single neutral arbitrator.

In addition, the agreement gives the “school” (ENGLISH as its chief executive officer) sole discretion to do whatever she pleases for whatever reasons she has:

Archer shall at all times have the right, for any reason considered sufficient by Archer in its sole discretion, to decline enrollment or re-enrollment and to discipline, suspend, or dismiss any student. Student may not be permitted to attend classes for any reason…, and arrangement for continued attendance lies within the sole discretion of the Head of School or her designee.  [Id.]

It also gives ENGLISH sole discretion to separate a student if she believes a parent’s behavior is unacceptable:

Unacceptable parent behavior may result in non-renewal or termination of this Agreement and Student’s enrollment.  Parent agrees that Archer’s decision for non-renewal or termination shall be final and at its sole discretion.  [Id.]

 Applying the Mandatory Arbitration Provision to Petitioners’ Tort Claims In This Case Would Be Unconscionable

Petitioner contends Respondent Court erred in interpreting this clause to embody all of Petitioner’s claims (including the three new causes of action in the FAC the court did not consider), none of which is based in any way on the educational enrollment agreement or any contract theory.

Petitioner further contends that Respondent Court erred in refusing to accept the FAC and fully considering and ruling on the arbitrability of the revised causes of action and these additional claims prior to ruling on defendants’ motion to compel arbitration.  Plaintiffs have an absolute right to amend their complaint prior to any responsive pleading and the FAC states the Petitioner’s actual and current claims.

Petitioner also contends that the trial court erred by refusing to rule the provision, at least in this context, is unconscionable because it seeks to encompass every act, including criminal conduct and malicious intentional torts against students and parents, committed by teachers, administrators or board members, simply because their conduct occurred in a context loosely related to the status of the victim as a student.

If all these intentional acts, regardless of their nature and the seriousness of the harm caused can be enveloped in a broadly worded arbitration clause in a school enrollment agreement, students and parents are literally helpless and remediless.  Thus, if a parent affronts the head of school in any way, she could punch the student in the face, or worse, punch the child in the face to punish the parent, and any effort to hold the head of school accountable would be limited to arbitration.  For that matter, if ENGLISH killed Petitioner’s dog or sent a drone to destroy his home as an expression of her animosity resulting from his opposition to any one of her decisions, the arbitration clause would limit Petitioner’s civil relief to the outcome of an arbitration proceeding shrouded in secrecy and rigged to deny effective relief.

The way ENGLISH and the BOT seek to interpret and enforce an arbitration clause in the ARCHER enrollment contract is intended to and, if upheld, will effectively strip students and their parents of meaningful recourse for any and every action (including criminal acts and intentional torts) committed by teachers, administrators and board members of a private school against children they were entrusted to protect.

Petitioner also contends that this adhesive, imbalanced, overly broad arbitration provision is unconscionable for other reasons as well:

1)  Whatever validity a broad interpretation of arbitrability of torts “arising out of a contract” may have in other commercial contexts, holding that criminal and tortious conduct against students by an educational institution entrusted with the welfare of children is inherently unconscionable and a violation of sound public policy.

2)  The arbitration provision contains a repressive confidentiality requirement that would prevent Petitioners from proving their claims and obtaining the relief therefrom and, in violation of sound public policy, prevent Petitioners from holding the Real Parties in Interest publicly accountable in order to deter them from further misconduct, to reform practices at ARCHER and other private educational institutions and to establish law that will protect all parents and their children from the kind of abusive conduct exhibited in this case.  If Real Parties in Interest succeed in limiting Petitioner to their carefully contrived arbitration process, it would prevent Petitioner from discussing the matter with, or seeking information from, teachers, administrators and parents who may have material evidence supporting their claims, from other parents who have similar experiences and concerns (including parents considering whether to enroll their children at ARCHER), and with the general public.  Even the ultimate outcome of the dispute would be clothed in confidentiality.  This is unconscionable.

3) The inevitable and unavoidable impact of permitting a private school to insert into a take-it-or-leave-it enrollment contract an inescapable arbitration clause is that students and parents will be completely deterred from pursuing remedies for even the most serious grievances.  What chance is there for a successful resolution when the secret arbitration process: a) sharply limits the substantive and procedural rights inherent in our judicial system, including injunctive relief; b) requires the payment of thousands of dollars of arbitration costs and subjects aggrieved parents to the possibility of payment of attorney’s fees (a fact that can be emphasized with intimidating effect by the school); c) subjects the complainant to sanctions if they even talk about their claims with other parents or friends; d) prevents any public knowledge of the outcome of the claims; e) shields the school from any form of public accountability; and e) precludes the evolution and clarification of the law in a manner that would deter other instances of misconduct and guide private school practices?  What is more, these limitations last forever, even after the children leave the school.[7]

4) In this case, the mandatory arbitration provision is supplemented by another adhesive and unconscionable clause in the enrollment contract seeking to vest in the Head of School the “sole discretion” (final and unchallengeable) to do anything she wants to Archer students and parents.  One could not devise a better scheme to avoid accountability—in the courts, in the arbitration hall, or via public or media scrutiny. This is unconscionable.

 PROCEDURAL HISTORY

Petitioners filed an action on May 28, 2014, asserting various tort causes of action against ARCHER, the BOT, ENGLISH, and the individual members of Archer’s Board of Trustees.  Ex. B.

At no time did any of the plaintiffs assert a cause of action for breach of the enrollment agreement or any other contractual claim or theory of recovery.  Id.  Further, while Archer is a signatory to the arbitration agreement, Elizabeth English and the individual board members are not.  Ex. A.

On June 24, 2014, Real Parties in Interest brought a motion to compel arbitration.  Ex. C.  The only basis proffered by Real Parties in Interest for why they were entitled to compel arbitration pursuant to an agreement they did not sign was that the individual defendants have “voluntarily submitted” to an arbitration.  Id.  Though they offered no evidence whatever to support their claim, Real Parties in Interest argued for the first time in their reply that they were entitled to force plaintiffs into an arbitration on the theory that they were agents of Archer or, alternatively, as third party beneficiaries to the enrollment agreement.  Ex. G.

On June 26, 2014, the defendants sought a TRO attempting to gag the Parents from speaking about this case on the basis of the confidentiality clause.  The Court denied the motion and, instead, entered a stay on the litigation pending the hearing on the motion to compel arbitration.  Ex. D.

On August 12, 2014, due to a substitution of counsel, Michael Josephson received an extension of three court days, to August 18, 2014, to file his opposition papers.  On August 18, Michael Josephson filed an opposition to defendants’ motion to compel arbitration and concurrently filed: (1) a Request for Dismissal of Archer, and the Board of Trustees as a corporate entity, as defendants; (2) a proposed First Amended Complaint (“FAC”); and (3) an application to lift the litigation stay for the purpose of filing the FAC.  Exs. E & F.  The proposed FAC dropped Archer, and the Board of Trustees as a corporate entity, as defendants, alleged eight causes of action, and made clear that the claims are tort claims not arising out of the enrollment agreement.  Id.

On August 26, 2014, Respondent Court heard oral argument on defendants’ motion to compel arbitration and took the matter under submission.  Ex. H.  On August 27, 2014, Respondent Court granted Michael Josephson’s requests for dismissal of Archer and the Board of Trustees as a corporate entity.  Ex. I.

The same day, on August 27, 2014, Respondent Court entered an order granting defendants’ motion.[8]  Ex. J.  The court’s order was based on the following two grounds:  first, a finding that all defendants may enforce the agreement because the individual defendants are being sued as the agents of the Archer School for acts committed within the scope of their agency and employment (citing Gravillis v. Coldwell Banker, 143 Cal. App. 4th 761, 772 n.3 (2006)); and second, a finding that the arbitration provision is not unconscionable because the Josephsons failed to show that the provision “shocks the conscience” (citing Baker v. Osborne Development Corp., 159 Cal. App. 4th 884, 894 (2008) and Little v. Auto Stiegler, Inc., 29 Cal. 4th 1064, 1071–72 (2003)).  Id.  Neither ground is supported under the circumstances presented here.

The Court’s August 27 Order further held that the motion for leave to file the FAC would await the outcome of the arbitration.  Id.

On September 11, 2014, over the Josephsons’ objections, JAMS issued a Commencement Letter at Real Parties’ request, thereby commencing arbitration proceedings and requiring the Josephsons to participate in the selection of an arbitrator.

On September 18, 2014, the Josephsons sought a stay of Respondent Court’s order.  Ex. K.  The same day, Respondent Court denied the stay request.  Ex. L.  Pursuant to JAMS rules, Petitioner must submit his arbitrator strike and ranking list by October 3, 2014.

 LEGAL ARGUMENT

First, as stated in the Request for Stay, supra,  the arbitration proceedings commenced by the defendants ENGLISH and the members of the BOT immediately after the Respondent Court’s ruling granting their motion to compel arbitration, over the Petitioners’ objection based on the fact that writs seeking to appeal the trial court’s judgment compelling arbitration would be promptly filed, should be stayed until Petitioners receive a ruling on their writs in order to prevent irreparable injury to Petitioners.

Second, again as stated in the Request for Stay, supra, the arbitration proceedings commenced by the defendants ENGLISH and the members of the BOT in an effort to force plaintiffs to arbitrate specific claims made in a complaint filed in civil court should be stayed because it is Petitioner’s sole prerogative to either pursue, modify or dismiss his claims, and he will be irreparably damaged if forced pay for and submit to an arbitration he believes cannot provide him with the remedies he seeks.

Third, Respondent Court erred in ruling that Petitioners can be forced to arbitrate with Real Parties in Interest, who were not signatories to the arbitration proceeding, where the Real Parties in Interest offered no evidence establishing a sufficient agency relationship, and the claim of agency was raised in a reply brief too late to allow Petitioners to respond.  Jones v. Jacobson, 195 Cal. App. 4th 1, 16 (2011) (non-signatories have burden of establishing agency).  Arbitration is contractual in nature, and there must be an agreement to arbitrate before it is compelled.

Fourth, Petitioner’s cause of action for professional malpractice seeks to apply the tort of professional malpractice to educators and establish specific standards to guide educators as to their responsibilities. Petitioner’s action seeks the court to affirm and apply the following legal principles regarding the fiduciary duty of educators including ENGLISH and the members of the BOT:

As a professional educator and the head of school, ENGLISH has a professional fiduciary duty towards to all students to: (a) provide an environment where students are protected from intentional, reckless or negligent actions of teachers and school officials that could cause emotional harm; (b) assure that no actions affecting students or their parents are based on personal grievance or pique; (c) set a good example for students, staff, administrators and parents; (d) ensure that the psychological well-being of students is fully taken into account in any disciplinary decisions; and (e) give fair notice (where reasonable) to parents of any potential adverse action against their children and an opportunity to inform administrators of any special factors concerning  their children that would be relevant to the fair disposition of the  disciplinary matter.  Id. (FAC ¶¶ 123–124).

The causes of action of Child 1 and Child 2 for violation of the Unruh Act and the Americans with Disabilities Act are not arbitrable.  Real Parties’ obligation to reasonably accommodate Child 1’s disability is created by law and does not arise out of nor can it be eliminated by the enrollment contract.

Fifth, Respondent Court erred in ruling that an arbitration clause, which contains a confidentiality provision that benefits only the drafter of the provision and precludes the ability of an aggrieved party to gather evidence to prove its claims and limits the right of free speech, is not unconscionable.  Ting v. AT&T, 319 F.3d 1126, 1152 (9th Cir. 2003); Pokorny v. Quixtar, Inc., 601 F.3d 987, 1002 (9th Cir. 2010); Davis v. O’Melveny & Myers, 485 F.3d 1066, 1078 (9th Cir. 2007); Schnuerle v. Insight Communications Co., 376 S.W.3d 561, 578–80 (Ky. 2012).

Public accountability is a deterrent.  The law allows for exemplary damages precisely because there are times in which, in order to achieve good public policy, a wrongdoer has to be and should be punished.  Part of that punishment is to reveal and expose the conduct.  The arbitration clause at issue here guarantees that there will be no public accountability for Real Parties’ actions and, consequently, nothing to deter them from continuing to act in this way.  If Real Parties in Interest succeed in denying Michael Josephson a public forum, Real Parties will establish a precedent that will prevent any parent from daring to oppose anything anyone remotely affiliated with Archer does in the future.  This should not be allowed.

Sixth, Respondent Court erred in ruling that a “take-it-or-leave it” arbitration provision can be enforced to deny an aggrieved party access to the courts when the compelled arbitration proceeding is imbalanced in favor of the author of the provision by creating cost barriers, including shifting fees on statutory claims, D.C. v. Harvard-Westlake School, 176 Cal. App. 4th 836, 864–65 (2009), imposing limitations, preventing public accountability and deterrence, and precluding the creation and clarification of law reforms.

Seventh, Respondent Court erred in interpreting an arbitration provision in an enrollment contract so broadly that it effectively immunizes an educational institution from public accountability and liability by preventing access to the courts to children injured by criminal acts and intentional torts committed by teachers, administrators or board members because such a provision is inherently unconscionable and inconsistent with compelling public policy.

It is important to understand that the enrollment agreement is being insisted upon by a school that is entrusted (by parents) with the care, supervision and education of their minor children from morning through afternoon of every school day of the year.  This relationship of trust implies the highest duties.  It would be completely inconsistent for the law to say, on the one hand, that the welfare of children is of paramount importance but, on the other hand, when children are harmed it will be swept under the rug in a confidential arbitration that nobody will ever know about, and that no parent probably would ever bring because they either cannot afford the arbitrator’s fees, or cannot risk the consequence of losing the case and their house and other assets along with it due to the fees-shifting provision, or both.  Yet that is precisely what the Archer arbitration clause purports to do, and is precisely why the school mandates that all parents sign it—to give the school a cloak of invulnerability, as well as confidentiality—at the expense of the minor students’ public safety, and any accountability of school officials.  Their dominant objective is to deter meritorious claims and clothe the entire process in an impenetrable veil of secrecy.  When important policies such as the duties that are owed to children are involved, however, such deterrence and secrecy are against the public interest.

The concerns raised herein are of special importance as more and more states and municipalities are experimenting with “school choice” and privately run schools, which receive less governmental oversight and are not directly accountable to the public.  Additionally, more and more students are enrolling in “for profit” vocational and trade schools, which also force their students to sign mandatory arbitration clauses.  Stephen Burd, INSIDE HIGHER ED, “Signing Away Rights,” (Dec. 17, 2013) available at https://www.insidehighered.com/views/2013/12/17/essay-questions-mandatory-arbitration-clauses-students-profit-higher-education  (viewed Sept. 22, 2014) (noting that while shareholders of for-profit schools were able to recover in court in fraud suit based on false graduation rate claims, defrauded students would not be compensated because they had signed arbitration agreements).  Thus, a larger and larger segment of the school-age population is attending schools whose officials may be completely legally unaccountable to anyone.

Eighth, Respondent Court erred in enforcing a highly restrictive “take-it-or-leave-it” arbitration provision in an enrollment contract of an educational institution for children, when the contract also grants an administrator complete, sole and final discretion to do anything she pleases, regardless of the harm caused or the existence of improper motives or the inherent arbitrary or capricious nature of the use of authority.  Such a provision is inherently unconscionable and inconsistent with compelling public policy.

Ninth, Respondent Court erred in forcing Petitioners into an arbitration process that prevents them from offering their claims in a forum where they can seek to create or clarify legal principles in a manner that would hold wrongdoers accountable for their conduct, deter similar abuses and establish clear standards that assure that educational institutions safeguard the well-being of children entrusted to their care.  The secret arbitration process in this context is inconsistent with sound public policy and the American tradition of law reform and evolution.  “Imagine if a 1951 class action lawsuit against the Board of Education of Topeka, Kansas challenging ‘separate, but equal’ education was dismissed on a motion to compel arbitration.  . . . Would segregation have ended without the litigation that resulted in Brown v. Board of Education?”  Jeff Guarrera, “Mandatory Arbitration: Inherently Unconscionable, but Immune from Unconscionability,” 40 W. St. U. L. Rev. 89, 89 (2012) (footnotes omitted).

Only the court system can change the laws.  If Michael Josephson is sent to arbitration, he cannot make any attempt to do so.  And no one can.  There will never be any reform in the private education context, because there will be few plaintiffs able to spend all the money and time and energy trying to fight an unconscionable arbitration clause with an oppressive confidentiality provision in the hopes of having their day in court.  Even if an arbitrator were to agree with Petitioner that, for instance, educators owe a professional duty of care to their students and to parents, the decision would have no precedential effect and would indeed, thanks to the confidentiality clause, not even be available to the general public or other parents of children enrolled in private schools.  As a result, the law will forever be stacked in the private schools’ favor.

Michael Josephson is aware of the decisions in Bigler v. Harker School, 213 Cal. App. 4th 727 (2013), and D.C. v. Harvard-Westlake School, 176 Cal. App. 4th 836 (2009), upholding arbitration clauses in school enrollment agreements.  However, neither of those cases considered the arguments being made here.  D.C. was decided solely on an issue of procedural unconscionability, and was based on a fiction that a plaintiff would be able to prove whether the school had agreed to negotiate its standard form arbitration agreements with parents.  D.C., 213 Cal. App. 4th at 826.  It is, of course, obvious that no parent could prove that, and that schools never negotiate these provisions anyway.  D.C. did not rule on substantive unconscionability at all.

As for Bigler, it rejected claims that an arbitration provision was substantively unconscionable because it excluded one type of claim (disputes relating to tuition payment) from the agreement.  Bigler did not consider the argument that arbitration agreements in the educational context were per se unconscionable.  Rather, Bigler assumed that such agreements were permissible, and reasoned that if they were, the broad language of the arbitration clause in Bigler extended to the tort claims asserted therein.  Bigler, 213 Cal. App. 4th at 739.  Bigler is wrong on that point—contractual arbitration should not extend to tort claims for personal injuries where school officials are alleged to have acted ultra vires.  However, even if Bigler is taken as correct, its reasoning does not extend to the argument being made in this petition.

Tenth, the drafter of a provision in a form contract claimed to be a contract of adhesion should have the burden of proving it is not a non-negotiable, take it or leave it contract.

*        *        *

In sum, instead of being able to shine a light on abominable conduct and seek to change the practices in the area of private education, Michael Josephson is being forced into an unconscionable arbitration proceeding—one that will: 1) insulate Real Parties in Interest from any public accountability for their actions, 2) prevent Michael Josephson from talking with anyone about his grievances and his efforts to hold Real Parties in Interest accountable by means of a confidentiality clause they have sought to use to even prevent him from communicating information about this lawsuit, 3) impose onerous costs on Michael Josephson relating to the arbitration, and 4) subject Michael Josephson to the threat of being forced to pay Real Parties’ legal expenses.

This oppressive, unfair and unconscionable arbitration clause was presented to Michael Josephson without negotiation, within a mandatory written form contract that every parent is required to sign for admittance to, and continued enrollment at, the school.  Among other things, the clause purports to force parents to pay exorbitant arbitration fees and costs simply to have a forum to seek redress, and to hold them responsible for paying potentially hundreds of thousands of dollars (or more) to the school for reimbursement of legal costs, in the event the all-powerful arbitrator rejects the claim.  Such onerous provisions effectively preclude children and parents from ever seeking to hold school employees responsible for tortious acts.  This is the underlying basis of Michael Josephson’s lawsuit—to demand reforms in procedures and policies to prevent this sort of abuse of power against any other family—at Archer and elsewhere.

CONCLUSION

For the foregoing reasons, Petitioner respectfully urges the Court to issue a writ of mandate directing Respondent Court to show cause why it should not vacate its order of August 27, 2014 and to issue a new order denying the Real Parties in Interests’ motion to compel arbitration.

Dated:  September 30, 2014         Respectfully submitted,

MICHAEL JOSEPHSON

[1]Michael Josephson is the father of co-plaintiffs below, Child 1 and Child 2.

[2] The head of the upper school, Samantha Coyne, indicated to Petitioner that ordinarily the sanction for such behavior would be minor and not justify a suspension.  Id. (Compl. ¶ 27).

[3] Though ENGLISH claimed in a declaration (Ex. __ ) that this procedure was required by school rules, in fact, it is a process used only occasionally and ENGLISH had the discretion to impose a less traumatic and more appropriate form of discipline.  Ex. B (Compl. ¶ 51).

[4] Child 1 had been admitted to college subject to her completion of her last semester.  Id. (Compl. ¶ 1).

[5] The BOT was informed of this action and asked to repudiate it several days before the graduation ceremonies and, instead, the board ratified the decision. Id. (Compl. ¶¶ 106–110).

[6] The issue was raised in oral argument on the motion to compel arbitration and defendant’s counsel simply insisted that it was the plaintiffs’ burden to prove that they tried to negotiate the contract.  Ex. H (Trans. 25:2–10). Where it would be a simple matter for the party drafting the provision to indicate that the contract was not a strict take-it-or-leave-it requirement for enrollment, while a person challenging the provision would have to prove they irrationally endangered their relationship with the school for no reason, seeking to shift the burden of proof to the plaintiffs is a cynical and ingenuous ploy.

[7] “This arbitration agreement applies during the term of this Enrollment Agreement and survives after the termination of this Enrollment Agreement.”  Ex. A.

[8] Thus, Archer and the Board of Trustees as a corporate entity are not Real Parties in Interest on this appeal.

[9] These are the current claims asserted in Plaintiffs’ pending First Amended Complaint resulting from a change in legal counsel replacing the following causes of action in the original complaint: intentional and negligent infliction of emotional distress, professional malpractice, injury to and interference with personal relations, threats, intimidation and coercion, and defamation. Ex. B (Original Complaint).  Whichever list is used, these are tort causes of action that should not be enveloped in the arbitration clause.

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