Judge Randolph M. Hammock, Case Number: 23STCV00271, Date: 2023-06-29 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV00271, Date: 2023-06-29 Tentative Ruling

Plaintiff Dora Valles worked for Defendant Unifirst Corporation as a laundry service worker. Plaintiff alleges she began to experience pain in her back, shoulders, neck, and arms that made it difficult to perform physical labor. Plaintiff reported these injuries to her supervisors, who failed to accommodate her and allegedly retaliated against her for attempting to take time off to treat her injuries. Defendant eventually terminated Plaintiff. Plaintiff alleges her termination was due to her perceived disabilities and/or disabilities, medical condition and medical leave.

As a preliminary matter, Defendant objects to Plaintiff’s opposition as untimely. All papers opposing a motion shall be filed with the court and a copy served on each party at least nine court days before the hearing. (C.C.P. § 1005(b).) A trial court has discretion to refuse to consider untimely oppositions. (Cal. Rules of Court, rule 3.1300(d)).

Plaintiff provides no explanation for the late filing. Be that as it may, in the interests of justice, this court exercises its discretion to consider untimely opposition. To the extend Defendant contends it was prejudiced by the delay, Defendant could have, but did not, move for leave to file a late reply.

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353). “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.” (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205).

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284).

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . .” (CCP § 1281.4.)

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)] or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.)

California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. “Even so, parties can only be compelled to arbitrate when they have agreed to do so.” (Avila v. S. California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835, 843.) “The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Id.)

An arbitration agreement is a contractual agreement. “General contract law principles include that ‘[t]he basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] ... The words of a contract are to be understood in their ordinary and popular sense.” [Citations.] (Garcia v. Expert Staffing W., 73 Cal. App. 5th 408, 412–13.)

Defendant has the initial burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 165.) “[I]t is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215, 218.)

Defendant Unifirst presents evidence that Plaintiff signed an agreement to arbitrate at the start of her employment. Defendant presents a declaration from its Senior Human Resources Compliance Consultant, Peter Stanieich-Burke. Stanieich-Burke’s responsibilities include “ensuring that Company HR policies and procedures are implemented and followed at each location.” (Stanieich-Burke Decl. ¶ 4.) As such, he is familiar with UniFirst's procedures “concerning the creation and maintenance of” employee records. (Id.)

Stanieich-Burke states that Defendant uses the third-party software Hyland Software OnBase (“OnBase”) and Taleo to maintain employee records and conduct onboarding. (Id.) Stanieich-Burke attests to have reviewed Plaintiff’s records. (Id. ¶ 6.)

“At the start of their employment, all UniFirst employees, including Plaintiff, receive, complete, and sign UniFirst's onboarding documents through Taleo which are then stored in OnBase.” (Id.) To begin in Taleo, each applicant must create a user profile. (Id. ¶ 7.) This requires the applicant to provide “personal contact information, such as their personal email and mobile phone number.” (Id.) Stenieich-Burke represents that an applicant's access to Taleo is “secure and confidential,” as “no UniFirst employee, including supervisors, management or me, can log into Taleo as another employee or access another employee's password.” (Id.)

Successful applicants for employment have the option to electronically accept or decline their offer letter in Taleo. (Id. ¶ 8.) To accept the letter, the applicant must type in their password to generate their electronic signature. (Id. ¶ 8.) “The applicant must then click on the ‘Submit’ button to cause their signature and the date and time stamp to be placed on the offer letter, thereby finalizing the applicant's acceptance of the employment offer.” (Id.)

At the time of the their employment offer, each employee is presented with UniFirst's Employee Acknowledgment and Arbitration Agreement (“Arbitration Agreement”). (Id. ¶ 9.) The Arbitration Agreement must be reviewed and signed before an employee can begin the onboarding process. (Id.) The employee must “enter their Taleo password in order to electronically sign and agree to [the] Arbitration Agreement.” (Id. ¶ 10.)

Plaintiff worked two separate stints with Defendant, and therefore went through the onboarding process twice. First, Stenieich-Burke represents that Plaintiff created a Taleo profile on October 30, 2019. (Id. ¶ 12.) Plaintiff accepted an offer of employment on November 4, 2019. (Id.) On December 5, 2019, Plaintiff signed the Arbitration Agreement. (Id. ¶ 13.)

Plaintiff apparently created a second profile in Taleo on May 12, 2021, during her second stint with the company. (Id. ¶ 14.) This again required her to use unique log-in credentials. (Id.) Plaintiff accepted UniFirst's offer of employment by electronically signing the offer on May 18, 2021. (Id.) Plaintiff signed a second Arbitration Agreement through Taleo on May 18, 2021, by typing her Taleo password to generate an electronic signature. (Id.)

The Company and I waive all rights to trial in court before a judge or jury on all claims covered by this Agreement. Instead, except as provided below, the Company and I (for myself and on behalf of my heirs, spouse, successors, assigns, and agents) agree all legal disputes and claims between us will be determined exclusively by final and binding arbitration. Claims subject to this Agreement include without limitation all claims pertaining to my employment or other relationship with the Company (including application for or termination of employment or other relationship or any background-check process associated with same) and all claims for discrimination, harassment, or retaliation; wages, overtime, or other compensation; breach of any express or implied contract; negligence or other tort; or violation of any federal, state, or local law. Claims subject to this Agreement include claims against the Company and the Company's parents, subsidiaries, affiliates, divisions, brands, clients, customers, alleged agents, alleged joint or coemployers, and alleged joint ventures, and their respective directors, officers, employees, and agents, whether current, former, or future.

There is no dispute that the arbitration agreement is broad enough to cover the claims here. (See California Corr. Peace Officers Assn. v. State of California (2006) 142 Cal. App. 4th 198, 205 [“Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration”].)

This switches the burden to Plaintiff, who “bears the burden of producing evidence to challenge the authenticity of the agreement.” (Gamboa, supra, 72 Cal. App. 5th at 165.) Plaintiff can do this in “several ways,” including by “declar[ing] under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.)

Had such document been explained to me or translated to me, or given to me to sign, I would not have agreed to signing it and waving my rights again. Had the attached Arbitration Agreement been provided to me or explained to me, I would not have given up my Constitutional right to a jury trial for any of my potential claims, or statutory rights or claims, nor was that fact or possibility ever explained or even told to me. [FN 1]

This places the final burden on Defendant to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.) In determining whether Plaintiff signed the agreement by a preponderance of the evidence, this court must necessarily sit as the trier of fact and resolve evidentiary conflicts. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284).

First, the instant case distinguishable from Ruiz, a case relied on by Plaintiff. In Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal. App. 4th 836, 844, the issue was whether an electronic signature was the “act of” the employee. The employee did not recall signing the agreement. And the employer provided only a Declaration from the employer’s business manager “offer[ing] her unsupported assertion that [the employee] was the person who electronically signed the 2011 agreement.” (Id.) The court held that “[i]n the face of [the employee’s] failure to recall electronically signing the 2011 agreement”, and the employer’s failure to adequately authenticate the agreement, the electronic signature “was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ [the employee].” (Civ. Code, § 1633.9, subd. (a).) The court noted that authenticating an electronic document or signature is “not a difficult evidentiary burden to meet,” but that it was not met in that case. (Id. at 844.)

The facts here, however, are more in line with Espejo v. S. California Permanente Med. Grp. (2016) 246 Cal. App. 4th 1047, 1053. There, the court came to the opposite conclusion of Ruiz, finding the employer had met its burden “by attaching to their petition a copy of the purported arbitration agreement bearing Espejo's electronic signature.” (Id. at 1060 [emphasis added].) Unlike in Ruiz, the Espejo defendant “had sufficiently security precautions regarding transmission and use of an applicant's unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement.” (Id. at 1062.)

Likewise, here Defendant has sufficiently described the electronic process that Defendant utilized for employee onboarding. Defendant has also explained the onboarding measures in place that suggests with reasonable certainty that only Plaintiff could have signed the agreement.

Authenticating an electronic signature, after all, is “not a difficult evidentiary burden to meet.” (Ruiz, supra, 232 Cal. App. 4th at 844.) Based on a preponderance of the evidence and the totality of the circumstances, this court finds that Defendant has met its burden to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.)

The Federal Arbitration Act provides for enforcement of arbitration provisions in any contract “evidencing a transaction involving commerce.” (9 USC § 2.) The term “involving commerce” is functionally equivalent to “affecting commerce” and “signals an intent to exercise Congress’ commerce power to the full.” (Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 US 265, 277.) “The party asserting the FAA bears the burden to show it applies by presenting evidence establishing [that] the contract with the arbitration provision has a substantial relationship to interstate commerce . . . .” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.)

UniFirst is one of North America's largest workwear and textile service companies, providing managed uniform, protective clothing, and custom corporate image apparel programs to businesses in diverse industries. UniFirst services local business customers via more than 225 service centers throughout the United States, Canada, and Europe. UniFirst has service centers in all but five of the fifty U.S. states. Many orders for new garments are filled by UniFirst in Owensboro, Kentucky. New goods are shipped from Kentucky and other locations to the plant nearest the customer, where the goods are unpacked, organized by route and customer, and transported to the customer by specialty drivers and route sales representatives, in uninterrupted interstate commerce. Each new good is designated for interstate transit directly to a customer from its origination point, and none of the items are kept in inventory for any significant period of time.

Unconscionability has “both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Sanchez v. Valencia Holding Company, LLC (2015) 61 Cal.4th 899, 910.) Under California law, an arbitration agreement must be in some measure both procedurally and substantively unconscionable in order for the agreement to be unenforceable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 982.) “But they need not be present in the same degree. . . . [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114.)

In support, Plaintiff relies on Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal. App. 4th 74. There, a defendant employer moved to compel arbitration of a dispute based on the plaintiffs having signed an employment agreement containing an arbitration clause. (Carmona, supra, 226 Cal. App. 4th at 78-79.) The plaintiffs spoke little or no English. The employer presented plaintiffs with a Spanish translation of only some portions of the employment agreement, including the arbitration provision and a “confidentiality clause.” (Id. at 80.) However, the employer notably did not translate a separate “enforceability clause” to Spanish. (Id.) The enforceability clause “pertain[ed] to certain disputes between employee and employer and arbitration rights.” (Id. at 81.) Thus, it was necessary for the court to read the arbitration provision and other clauses “in conjunction to ascertain the entire ‘arbitration agreement’.” (Id.)

Addressing procedural unconscionability, the Carmona court the found the selective translations—i.e. providing some provisions in Spanish but not others—constituted an “element of surprise.” (Id. at 85.) “The car wash companies hid the enforceability clause and the entire confidentiality subagreement by failing to translate that portion of the agreement into Spanish.” The court continued that the “car wash companies evidently knew plaintiffs required Spanish translations because they provided some translation.” (Id.) This factor, among others, “elevate[d] this case to a high degree of procedural unconscionability.” (Id.)

Here, the facts are distinguishable from Carmona. Defendant did not selectively translate some portions of the arbitration agreement but not others. Rather, Defendant presented the entire agreement to Plaintiff in English, and therefore the “element of surprise” is absent.

Additionally, “the fact that [a plaintiff] signed a contract in a language he may not have completely understood would not bar enforcement of the arbitration agreement.” (Ramos v. Westlake Servs. LLC (2015) 242 Cal. App. 4th 674, 687.) “If [the plaintiff] did not speak or understand English sufficiently to comprehend the English Contract,” the solution is to “have had it read or explained to him.” (Id.; Pinnacle Museum Tower Assn. v. Pinnacle Market Development LLC 55 Cal.4th 223, p. 226 [“An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.”]; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710, [general rule is one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language]; Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674 [reasonable diligence requires reading of contract before signing].)

Be that as it may, this fact is considered in light of the reality of the unequal bargaining process that typically exists in the employer-employee context. Plaintiff correctly notes the agreement here was a contract of adhesion. “The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” [Citation]. (Id. at 113).

Here, the “take it or leave it” nature of the agreement is sufficient to establish “some degree of procedural unconscionability.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915). This means the substantive terms of the agreement must be scrutinized to ensure they are not manifestly unfair or one-sided. (Id.) In addition, that Plaintiff could not read the English contract also supports some degree of procedural unconscionability. Because Defendant presented Plaintiff with a Spanish version of the employment agreement during her first stint with the company in 2019, Defendant “evidently knew” that some employees required a Spanish translation. (See Carmona, supra, 226 Cal. App. 4th at 78-79.) The court now turns to substantive unconscionability.

Here, the Agreement states both the “Company and I waive all rights to trial in court before a judge or jury on all claims covered by this Agreement,” and “the Company and I… agree all legal disputes and claims between us will be determined exclusively by final and binding arbitration.” (Stanieich-Burke Decl., Exh. G, ¶ 2.) Moreover, the Agreement applies to “all claims pertaining to my employment or other relationship with the Company.” (Id.) This language is broad and is reasonably construed as mutually requiring both Plaintiff and Defendant to arbitrate their respective claims against the other. This argument therefore fails.

Next, Plaintiff argues the Agreement violates Armendariz. As relevant here, Armendariz factor 5 provides that the Agreement must not “require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 102.)

Plaintiff contends the Agreement violates factor 5 because it requires her to initiate arbitration by “notify[ing] the other party in writing by hand delivery or certified mail.” (Stanieich-Burke Decl., Exh. G, ¶ 4.) This court cannot find that requiring Plaintiff to cover the costs of certified mail for a single mailing is “unreasonable.” Moreover, Plaintiff would be required to cover costs of mailing if the matter proceeded in court. The Agreement otherwise provides that Defendant “will pay all costs unique to arbitration, including the arbitration fees and expenses.” (Stanieich-Burke Decl., Exh. G, ¶ 8.) This argument therefore also fails.

Plaintiff next argues the agreement violates Armendariz because it permits the arbitrator to award the prevailing party fees, “which is not permitted in a FEHA case such as this.” (Opp. 17: 22-23.) Plaintiff selectively quotes only a portion of the Agreement. Read in full, the relevant portion provides that “the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party to the same extent a court would be entitled to do so, in accordance with applicable law.” (Stanieich-Burke Decl., Exh. G, ¶ 8 [emphasis added].)

Because the arbitrator can only award fees “in accordance with [FEHA],” there is no merit to Plaintiff’s argument that the arbitrator could simultaneously award fees in violation of FEHA. Indeed, the Agreement provides that the arbitrator “will apply, and will not deviate from, the substantive law of the state in which the claim(s) arose and/or federal law, as applicable.” (Stanieich-Burke Decl., Exh. G, ¶ 5.)

Plaintiff next argues the agreement is procedurally unconscionable because it does not provide for judicial review. Plaintiff cites to Armendariz, but that case has no such requirement. “All we hold today is that in order for such judicial review to be successfully accomplished, an arbitrator in an FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.” (Armendariz, 24 Cal. 4th at 107.) The Agreement here provides that the arbitrator “will render a written award setting forth findings of fact and conclusions of law.” (Stanieich-Burke Decl., Exh. G, ¶ 5.) Nothing more is required.

Finally, citing to the case Aixtron v. Veeco Instruments (2020) 52 Cal.App.5th 360, Plaintiff argues the agreement violates California law because it allows an arbitrator to compel nonparty discovery. The Agreement provides that the arbitrator “will have the authority to issue subpoenas to compel the production of documents during discovery and the attendance of witnesses at the arbitration hearing.” (Stanieich-Burke Decl., Exh. G, ¶ 5.)

Judge of the Superior Court

FN 1 - To be blunt: This statement is inherently unbelievable and defies common sense. With all due respect to Plaintiff, it is highly unlikely that a person in her position would flatly refuse this job over an arbitration clause. Typically, applicants for employment don’t bother to even read what they sign, and moreover, they don’t really care at all whether they sign an arbitration agreement. They just want the job. Period. It is an extremely rare person who will essentially say to their employer: “I ain’t signing this. You can take this job and shove it!” As such, this Court gives little or no weight to this statement, which was clearly written by her lawyers. Indeed, this Court suspects that Plaintiff merely signed her declaration without reading and understanding it, as in the case of most similar situations.

FN 2 - The parties apparently agree that the more recent 2021 Arbitration Agreement—and not the 2019 Agreement—governs here. Although the Arbitration Agreement presented to Plaintiff in 2019 included a Spanish version, it appears undisputed the 2021 Agreement was only presented to her in English. (See Stanieich-Burke Decl. ¶¶ 13, 15; Exhs. C, D, & G.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.