Judge Robert B. Broadbelt, Case Number: 24STCV09931, Date: 2025-04-15 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 24STCV09931, Date: 2025-04-15 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

MOVING PARTY: Defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center)

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court denies defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center)’s request for judicial notice of fact numbers 1-3 because they are not material to the court’s disposition of this motion. (Malek Media Group LLC v. AXWG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

The court rules on plaintiff Mary Irene Flores’s evidentiary objections, filed on April 2, 2025, as follows:

The court rules on defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center)’s evidentiary objections,[2] filed on April 8, 2025, as follows:

Objection No. 4 is sustained as to the statement “Due to this limitation, I advised Defendant that I would fill-out any employment related documents on my first day of employment on February 1, 2023. Defendant did not object this request.”

Defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center) (“Defendant”) moves the court for an order (1) compelling plaintiff Mary Irene Flores (“Plaintiff”) to submit the claims alleged in her Complaint to binding arbitration, and (2) staying this action pending completion of arbitration.

As a threshold matter, the court finds that Defendant has met its burden to show that the Federal Arbitration Act (9 U.S.C § 1 et seq.) governs this motion because the agreement that is the subject of this motion states that it “is enforceable under and governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the ‘FAA’) and the procedural rules of the FAA shall apply,” unless the Federal Arbitration Act is held not to apply for any reason.[3] (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 2; Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 345 [parties may, in accordance with choice-of-law principles, adopt the more restrictive procedural provisions of the Federal Arbitration Act], 346 [“when an agreement provides that its ‘enforcement’ shall be governed by the FAA, the FAA governs a party’s motion to compel arbitration”].)

“‘ “The party seeking to compel arbitration bears the burden of proving the existence of an arbitration agreement, while the party opposing the petition bears the burden of establishing a defense to the agreement’s enforcement.” ’”¿ (Beco v. Fast Auto Loans (2022) 86 Cal.App.5th 292, 302.)¿ To determine the existence of an arbitration agreement, the court uses “a three-step burden-shifting process.”¿ (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755.)¿ “The arbitration proponent must first recite verbatim, or provide a copy of, the alleged agreement.¿ [Citations.]¿ A movant can bear this initial burden ‘by attaching a copy of the arbitration agreement purportedly bearing the opposing party’s signature.’”¿ (Ibid. [internal citations omitted].)¿ “If the movant bears its initial burden, the burden shifts to the party opposing arbitration to identify a factual dispute as to the agreement’s existence . . . .”¿ (Ibid.)¿ If the opposing party meets its burden to “submit sufficient evidence to create a factual dispute” as to the existence of the agreement, the burden shifts back to the arbitration proponent, who retains the ultimate burden of proving its existence by a preponderance of the evidence.¿ (Ibid.)

First, the court finds that Defendant has met its initial burden to attach a copy of the alleged agreement. (Iyere, supra, 87 Cal.App.5th at p. 755.)

Defendant has submitted a copy of the “Mutual Agreement to Arbitrate Claims” dated January 27, 2023 (the “Arbitration Agreement”), which purports to bear the electronic signature of Plaintiff. (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 3.) The Arbitration Agreement provides that Defendant and Plaintiff agree to resolve any and all claims or controversies relating to or associated with Plaintiff’s employment or termination of employment by binding arbitration. (Id. at p. 1.) Thus, the court finds that Defendant has met its initial burden to attach a copy of an arbitration agreement purportedly bearing Plaintiff’s electronic signature.

Second, the court finds that Plaintiff has met her burden to identify a factual dispute as to the authenticity of her signature on the ground that Plaintiff has stated, in her declaration, that “[t]he signature that appears on [the Arbitration Agreement] is not [her] signature” and does not “even closely resemble [her] signature.”[4] (Flores Decl., ¶ 8; Iyere, supra, 87 Cal.App.5th at pp. 755, 758 [“an individual normally can recognize or disavow a handwritten signature that purports to be his or her own”].)

Third, the court finds that Defendant has met its ultimate burden of proving, by a preponderance of the evidence, the authenticity of Plaintiff’s signature and the existence of the Arbitration Agreement. (Iyere, supra, 87 Cal.App.5th at p. 755.)

Defendant has submitted the declaration of Brittney Rehmeier, a Human Resources Business Systems Analyst that performs work for Defendant (“Rehmeier”), in which Rehmeier states that (1) Defendant utilizes Workday, a human resources software application, to share onboarding documents with employees for their review and signature; (2) an employee activates their Workday account by clicking on a link provided in an email that (i) is sent directly to the employee’s personal email address (and not sent to any other person), and (ii) sets forth a temporary username and password; (3) after logging into Workday with the temporary login information, the employee is immediately prompted to choose a new password and create security questions, which are not shared with Defendant; and (4) the employee thereafter may sign into Workday and complete the required onboarding documents. (Rehmeier Decl., ¶¶ 1-2, 9, 11-14, 15.)

Defendant has also submitted evidence showing that (1) Plaintiff responded, and sent documents regarding her vaccination records, to Leticia Sandoval, a Human Resources Assistant for Defendant, from the email address marynayani@gmail.com, and (2) Workday sent emails to Plaintiff at that email address on January 27, 2023, which contained Plaintiff’s username and temporary password.[5] (Sandoval Decl., ¶¶ 1, 6-7 and Ex. 2 [showing email from “marynayani@gmail.com” in message chain entitled “Re: Next Steps – Irene Flores”] on January 27, 2023]; Rushton Decl., Ex. 17, p. 2 [listing in chart two communications from do-not-reply@ensignservices.net and one from ensign@workday.com]; Rehmeier Decl., ¶ 11 [Ensign Services, Inc. “tells Workday to send the new employee three emails, which are sent from the email address ensign@workday.com, to the employee’s persona[l], designated email address. These three emails contain the employee’s Workday designated user ID and a randomly generated temporary password. One of the emails contains a link to ESI’s Workday platform. The ‘reply to’ ensign@workday.com is do-not-reply@ensignservices.net”].) A report generated by Workday shows that Plaintiff’s Workday account was accessed for the first time on January 27, 2023, at 7:20 p.m., at which time the accessing person was required to set a new password. (Rehmeier Decl., ¶ 17.) A new password was chosen on that date at 7:30 p.m., and at 7:35 p.m., the Arbitration Agreement was signed via Plaintiff’s Workday account. (Rehmeier Decl., ¶¶ 17-18.)

The court finds that the evidence set forth above is sufficient to prove, by a preponderance of the evidence, the authenticity of Plaintiff’s signature and existence of the Arbitration Agreement because Defendant has shown that (1) Plaintiff’s personal email address is marynayani@gmail.com; (2) Workday sent emails to Plaintiff at that email address, which (i) set forth Plaintiff’s Workday username and temporary password and (ii) were not sent to anyone else or saved on Defendant’s systems, such that Defendant or any other party would not have had access to Plaintiff’s login information; and (3) the Arbitration Agreement was signed on the Workday platform, such that the only person that could have signed the Arbitration Agreement is Plaintiff. (Sandoval Decl., ¶¶ 1, 6-7; Rehmeier Decl., ¶¶ 17-18; Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545 [“a party may establish that the electronic signature was ‘the act of the person’ by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions”].)

Although Plaintiff has argued, in her opposition, that her adult daughter—who lived with Plaintiff at the time of Plaintiff’s hiring—might have been the individual that signed the Arbitration Agreement without Plaintiff’s authorization, the court finds that Plaintiff has not supported that contention with competent evidence.

The court acknowledges that Plaintiff has asserted, in her declaration, that the only electronic device that she owned before February 15, 2023 is an iPhone, which has an IP address of 76.95.181.174 and therefore differs from the IP address of the device that was used to sign the Arbitration Agreement.[6] (Pl. Decl., ¶¶ 6, 11; Biggs Decl., ¶ 7 [“The record reflects that the IP address used to access Plaintiff’s Workday account on January 27, 2023, was 172.114.184.206”].) But (1) Plaintiff did not state that she could not have used her daughter’s personal computer to sign the Arbitration Agreement, and (2) the court finds that Plaintiff’s assertion that she did not log onto the Workday portal on January 27, 2023 or electronically sign any employment-related documents is not credible because (i) Defendant has submitted evidence showing that other employment documents were electronically completed on January 27, 2023, some of which would appear to require the disclosure of information known to few people other than Plaintiff (e.g., Plaintiff’s tax information and emergency contact), and (ii) Plaintiff did not address or contradict the completion of those records on that date via the Workday program. (Pl. Decl., ¶ 8; Rehmeier Decl., ¶ 18 and Ex. 5 [Workday report showing completion of documents], Ex. 10 [Federal and State Tax Election forms for Plaintiff showing a completion date of January 27, 2023]; Rehmeier Decl., Ex. 11 [emergency contact information form for Plaintiff showing a completion date of January 27, 2023]; Rehmeier Decl., Ex. 12 [I-9 form for Plaintiff with completion date of January 27, 2023].)

The court also notes that Plaintiff has submitted the declaration of her adult daughter, Adrienne Lousie Flores (“Flores”), in which Flores states that she “believe[s] that [she] may have mistakenly logged onto Defendant’s portal using as [Plaintiff]” [sic] and therefore “believe[s] that [she] may have unintentionally signed the arbitration agreement as [Plaintiff], under the mistaken impression that the agreement was intended for [Flores’s] employment with Defendant.” (Flores Decl., ¶¶ 6-7.) However, the court finds that Flores’s statements that she “may” have mistakenly logged onto the Workday portal and signed the Arbitration Agreement as Plaintiff (1) are vague and therefore insufficient to show that Flores signed the Arbitration Agreement, and (2) are not credible because (i) the signature on the Arbitration Agreement does not appear to be Flores’s signature (i.e., it does not appear to be a signature of Flores’s name, such that the court could determine that Flores mistakenly signed the Arbitration Agreement believing that it was intended for Flores’s own employment with Defendant), and (ii) as set forth above, the Workday report shows that various other employment documents regarding Plaintiff—including Plaintiff’s tax forms—were electronically completed on the same date that the Arbitration Agreement was signed, and Flores did not state that she mistakenly completed those documents, as well.

Fourth, the court finds that the Arbitration Agreement encompasses the scope of the claims alleged in Plaintiff’s Complaint because (1) the Arbitration Agreement encompasses claims relating to Plaintiff’s employment, including tort claims and claims under the California Fair Employment and Housing Act and California Labor Code, and (2) Plaintiff has alleged claims for violation of Labor Code section 1102.5 and under the Fair Employment and Housing Act, and wrongful termination in violation of public policy. (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 1; Compl., ¶¶ 44-70.)

The court therefore finds that Defendant has met its burden to prove the existence of an agreement to arbitrate this controversy between itself and Plaintiff.

Plaintiff contends that the Arbitration Agreement is unenforceable as unconscionable.

“‘[A]greements to arbitrate [may] be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” ’”¿ (Beco, supra, 86 Cal.App.5th at p. 302.)¿ “The burden of proving unconscionability rests upon the party asserting it.”¿ (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (Kho).)¿ “Unconscionability entails an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”¿ (Iyere, supra, 87 Cal.App.5th at p. 759 [internal quotations omitted].)¿ It “‘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.”¿ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [citations omitted]; Kho, supra, 8 Cal.5th at p. 125 [“Both procedural and substantive unconscionability must be shown for the defense to be established, but ‘they need not be presented in the same degree’”].)

“Procedural unconscionability pertains to the making of the agreement . . . .”¿ (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.)¿ It “‘“focuses on two factors: ‘oppression’ and ‘surprise.’¿ [Citations.]¿ ‘Oppression’ arises from an inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice.’ [Citations.]¿ ‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.”’”¿ (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484 [citations omitted].)¿¿¿¿¿¿¿¿

The court finds that Plaintiff has not established procedural unconscionability because, although Plaintiff has argued that “Defendant’s Motion asserts that Plaintiff was presented with the alleged arbitration agreement as a condition of employment without any meaningful opportunity to negotiate the terms[,]” Plaintiff did not (1) cite Defendant’s evidence establishing that point, or (2) present her own evidence establishing that the Arbitration Agreement was presented to her on a take-it-or-leave-it basis. (Opp., p. 7:3-5.) Even if Plaintiff had shown that the Arbitration Agreement was presented to her as a condition of employment, the court would find that Plaintiff has established only a low level of procedural unconscionability on that ground. (Fisher v. MoneyGram Intern., Inc. (2021) 66 Cal.App.5th 1084, 1095 [“An adhesive contract does . . . establish at least some degree of procedural unconscionability”].)¿¿

“‘Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided.¿ [Citations.]¿ A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be “so one-sided as to ‘shock the conscience.’”’”¿ (Carmona, supra, 226 Cal.App.4th at p. 85.)¿ “‘“[T]he paramount consideration in assessing [substantive] unconscionability is mutuality.”’”¿ (Ibid.)¿¿¿¿¿

Plaintiff contends that the Arbitration Agreement is substantively unconscionable because (1) its scope is broad, (2) its terms are overly favorable to Defendant and limit Plaintiff’s rights, and (3) it prevents Plaintiff from participating in a class action or in an action brought under the Private Attorneys General Act Private Attorneys General Act of 2004 (Labor Code, §¿2698, et seq.) (“PAGA”). The court disagrees.

First, the court finds that the scope of the Arbitration Agreement, in requiring only the arbitration of claims arising out of the application for employment, employment, continued employment, or termination of such employment with Defendant—and not the arbitration of any claims unrelated to the employment relationship between the parties—is not unconscionably broad. (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 1; [providing that the parties agree to resolve by binding arbitration “any and all claims or controversies . . . in any way arising out of, relating to or associated with Employee’s [i.e., Plaintiff’s] application, employment, continued employment, or termination of such employment with Company [i.e., Defendant] or any of its present or future parents, affiliates, or subsidiaries”]; Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 321-325 [finding that the trial court did not err in holding that the arbitration agreement’s broad scope, in requiring arbitration of claims unrelated to the plaintiff’s employment with the defendant, is substantively unconscionable].)

Second, the court finds that Plaintiff has not shown that the Arbitration Agreement is “overly favorable to Defendant” and “limit[s] Plaintiff’s rights” because Plaintiff neither identified any term that Plaintiff believes unduly favors Defendant nor presented adequate argument, analysis, and authority to establish that such term is substantively unconscionable.

Third, the court finds that Plaintiff has not shown that the Arbitration Agreement prevents her from participating in a PAGA action or class action and is therefore substantively unconscionable.[7]

As to Plaintiff’s ability to participate in a PAGA action, the court notes that the Arbitration Agreement expressly states that nothing therein “shall be construed as an attempt to circumvent current legal precedent holding that certain claims brought under [PAGA] are non-waivable[,]” except that “to the extent that the legal precedent changes, [the parties] reiterate their agreement to resolve all claims on an individual basis only, and not as part of a PAGA claim or in any other representative capacity and expressly request that a court enforce this waiver to the maximum extent permitted y the law.” (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 1.) Thus, the Arbitration Agreement provides that it shall not be construed to circumvent law holding that PAGA claims are non-waivable and therefore is not substantively unconscionable.

Further, as to Plaintiff’s ability to participate in a class action, the court notes that the only restriction in the Arbitration Agreement is on litigating class claims in arbitration, and does not prevent the employee from participating in a class action in court. (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 1 [“Both Employee and Company forego and waive any right to join or consolidate claims in arbitration, with others or to make claims in arbitration as a representative or as a member of a class[,]” and further agree that “any class, collective, and/or representative action deemed non-waivable shall be litigated in court”] [emphasis added].)

The court notes that Plaintiff has asserted, in a footnote, that the Arbitration Agreement “runs afoul of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401, 402),” and therefore “is further evidence that Defendant’s broad ‘Arbitration Agreement’ is substantively unconscionable.” (Opp., p. 8, n. 1.) Plaintiff did not, however, cite authority establishing that an arbitration agreement that may be rendered unenforceable pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is also substantively unconscionable (1) as a matter of law and (2) in cases in which the statute does not apply.[8]

Thus, the court finds that Plaintiff has not met her burden to show that the Arbitration Agreement is substantively unconscionable. Because Plaintiff has not met her burden to establish substantive unconscionability, the court finds that Plaintiff has not met her burden to show that the defense of unconscionability applies and renders the Arbitration Agreement unenforceable. (Kho, supra, 8 Cal.5th at pp. 125 [“Both procedural and substantive unconscionability must be shown for the defense to be established . . . .”], 126 [“The burden of proving unconscionability rests upon the party asserting it”].)

For the reasons set forth above, the court finds that (1) Defendant has met its ultimate burden of proving that Defendant and Plaintiff entered into an agreement to arbitrate the controversy alleged in Plaintiff’s Complaint, and (2) Plaintiff has not met her burden to establish the defense of unconscionability. The court therefore grants Defendant’s motion to compel arbitration and to stay this action pending completion of arbitration.

The court grants defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center)’s motion to compel arbitration.

The court orders (1) defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center) and plaintiff Mary Irene Flores to arbitrate the claims alleged in plaintiff Mary Irene Flores’s Complaint, and (2) this action is stayed until arbitration is completed.

The court orders that the Final Status Conference set for April 10, 2026, is vacated.

The court sets an Order to Show Cause re completion of arbitration for hearing on December 2, 2025, at 8:30 a.m., in Department 53.

The court orders defendant Glimmer Healthcare, Inc., d/b/a Ramona Nursing and Rehabilitation Center (erroneously sued as The Ensign Group d/b/a Ramona Nursing and Rehabilitation Center) to give notice of this ruling.

[1] The court finds that the exhibits attached to the declaration of Brittney Rehmeier are business records that are not made inadmissible by the hearsay rule because (1) Rehmeier has (i) stated that the writings were made in the regular course of business at or near the time of the act, condition, or event and (ii) testified as to their identities, and (2) the sources of information and method of preparation are such as to indicate its trustworthiness. (Evid. Code, § 1271; Rehmeier Decl., ¶¶ 7, 8 [“I am Romona Nursing’s custodian of records for the documents attached to this declaration. Unless otherwise noted, the documents referenced in this declaration were prepared or received by the personnel of ESI [or the defendant] in the ordinary course of business at or near the dates stated in the documents”], 16 [Rehmeier ran the report via Workday to reflect the creation of the Workday account], 18].)

[2] The objections submitted by the moving defendant are not presented in numerical order and instead (1) appear to be based on the objectionable paragraph numbers, but (2) exclude an objection number on page 3, lines 25-28. In the interest of clarity, the court rules on the objections in numerical order.

[3] Plaintiff does not dispute the applicability of the Federal Arbitration Act.

[4] The court notes that the electronic signature appears to have been generated by drawing the signature with a touchpad rather than having been generated by typing, such that this signature is similar to handwritten signatures. (Rehmeier Decl., Ex. 6, Arbitration Agreement, p. 3.)

[5] The contents of the emails are not stored on ESI or Defendant’s systems, and “no other person is copied on emails containing the employee’s Workday user ID and temporary password.” (Rehmeier Decl., ¶ 12.) Moreover, although Plaintiff asserts that she did not log onto the Workday portal, she does not dispute that she received the login information from Workday’s emails.

[6] The IP address 172.114.184.206 belongs to Plaintiff’s adult daughter, Adrienne Louise Flores. (Flores Decl., ¶ 8.)

[7] Even if the provisions regarding an employee’s participation in class action and PAGA actions were unconscionable, the court would find that the unconscionability of those terms could be remedied by severing those provisions. (Civ. Code, § 1670.5, subd. (a); Beco, supra, 86 Cal.App.5th at p. 313.)

[8] Plaintiff does not argue that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 applies here and renders the Arbitration Agreement unenforceable against Plaintiff.

mary irene flores ; Plaintiff, vs. the ensign group, inc., d/b/a ramona nursing and rehabilitation center , et al.; Defendants.	Case No.:	24STCV09931

	Hearing Date:	April 15, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: defendant’s motion to compel arbitration