Judge: Teresa A. Beaudet, Case: 22STCV17100, Date: 2023-08-17 Tentative Ruling

Case Number: 22STCV17100    Hearing Date: August 17, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Maria Clara Robles (“Plaintiff”) filed this action against Defendant Compass Group USA, Inc. (“Defendant”) on May 24, 2022. In the Complaint, Plaintiff alleges causes of action for (1) disability discrimination, (2) retaliation, (3) sick leave violation, and (4) wrongful termination.

Defendant now moves for an order to (1) compel Plaintiff to submit her Complaint to binding arbitration and (2) dismiss or stay this litigation pending the outcome of the arbitration proceedings. Plaintiff opposes.

Evidentiary Objections

The Court rules on Plaintiff’s evidentiary objections as follows:

Objection No. 1: overruled

Objection No. 2: overruled

Objection No. 3: overruled as to “[a]s such, while Plaintiff’s original personnel file is no longer available to review, scanned copies of those documents are available, which was presented to Plaintiff’s counsel doing the meet and confer process,” sustained as to the remainder.

The Court rules on Defendant’s evidentiary objections as follows:

Objection No. 1: sustained

Objection No. 2: overruled

Objection No. 3: sustained as to “appears to have been cut and paste from a different document,” overruled as to the remainder.

Objection No. 4: sustained

Objection No. 5: overruled

Objection No. 6: sustained AS TO “which is an indication that it was cut and paste from a different document,” overruled as to the remainder

Objection No. 7: overruled

Objection No. 8: sustained except as to “The numbers are smudged”

Objection No. 9: sustained

Legal Standard

In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.) 

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2; see Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. § 2, et seq.; Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

            Discussion

A.    Existence of Arbitration Agreement

In the Complaint, Plaintiff alleges that she “was employed by Defendants from 2001 until May 26, 2020. At the time of her termination, Plaintiff worked as a full-time cafeteria employee.” (Compl., ¶ 8.)

In support of the instant motion, Defendant submits the Declaration of Lynn Macenko, who is currently employed by Defendant in the capacity of Human Resources Director (Field Support). (Macenko Decl., ¶ 1.) Ms. Macenko states that she has “been employed by [Defendant] since January 2013 in various Human Resources capacities.” (Ibid.) Ms. Macenko indicates that “Plaintiff was hired on or around March 2, 2001 as a Cart Attendant. Plaintiff’s employment ended on November 4, 2020 due to a lack of work and job elimination.” (Macenko Decl., ¶ 4.)

Ms. Macenko states that Defendant “implemented a pre-dispute arbitration agreement for new California employees in or around July 2015, which was also presented to its then-current workforce on a rolling basis. As part of the rollout, employees at Plaintiff’s worksite were presented with the arbitration agreement and was [sic] given unlimited time to review it and ask questions, if any, before signing. Because Plaintiff was an existing employee at the time the arbitration agreement was implemented, she was required to return the arbitration agreement with a wet signature.” (Macenko Decl., ¶ 7.) Ms. Macenko attaches as Exhibit “A” to her declaration a “copy of the fully executed arbitration agreement contained in Plaintiff’s personnel file titled, ‘ARBITRATION AGREEMENT FOR CALIFORNIA ASSOCIATES’ and which [Defendant] maintains Plaintiff signed during her employment on May 26, 2017.” (Macenko Decl., ¶ 7, Ex. A.)

The subject “Arbitration Agreement for California Associates” (herein, the “Agreement”) provides, inter alia, that “I and the Compass Related Entities agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my employment, including but not limited to the termination of my

employment and my compensation.” (Macenko Decl., ¶ 7, Ex. A.) The Agreement further provides that “[b]oth I and the Compass Related Entities agree that any claim, dispute, and/or controversy that I may have against the Compass Related Entities (or their owners, parents, subsidiaries, affiliated entities, directors, officers, managers, employees, or agents), or that the Compass Related Entities may have against me, shall be submitted to and determined exclusively by binding arbitration under the FederalArbitration Act (‘FAA’), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery).” (Ibid.)

            In the opposition, Plaintiff contends that “the handwriting affixed to the arbitration agreement appears to be electronically forged via copy pasting.” (Opp’n at p. 6:26-27.) Plaintiff notes that the subject Agreement contains certain broken lines at the signature block. (Macenko Decl., ¶ 7, Ex. A.) Exhibit “B” to Ms. Macenko’s declaration is a copy of other documents signed by Plaintiff and maintained in her personnel file. (Macenko Decl., ¶ 8, Ex. B.) Plaintiff notes that Defendant’s Exhibit “B” contains certain signatures appearing above straight lines. 

Defendant counters that “any smudging or uneven lines is attributable to the fact that the original physical copy is no longer in existence and this version is a scanned copy. As explained in [Defendant’s] moving papers and its written discovery responses, Plaintiff’s personnel file was kept at the facility at which she worked and about one or two years ago a number of boxes containing personnel files were destroyed…” (Reply at p. 4:1-5.) Defendant’s counsel’s declaration in support of the motion states that “while Plaintiff’s original personnel file is no longer available to review, scanned copies of those documents are available, which was presented to Plaintiff’s counsel doing the meet and confer process.” (Oki Decl., ¶ 4.)

            Plaintiff further argues that “Defendant’s failure to produce an arbitration agreement in response to Plaintiff’s prelitigation document request, Defendant’s counsel’s statements, and Defendant’s written discovery responses further indicate the arbitration agreement was forged.” (Opp’n at p. 8:13-15.) Plaintiff’s counsel states that “[o]n April 26, 2022 my office sent a written request to Defendant for Plaintiff’s personnel file, including the any [sic] arbitration agreements.” (Pairavi Decl., ¶ 5, Ex. A.) Plaintiff’s counsel states that on May 12, 2022, Defendant responded to the request, but that “absent from the document production was any arbitration agreement.” (Pairavi Decl., ¶¶ 6-7.) Plaintiff’s counsel states that, “[o]n August 31, 2022, notwithstanding Defendant’s failure to produce an arbitration agreement in response to Plaintiff’s prelitigation records request, Defendant provided Plaintiff with a copy of the arbitration agreement and requested Plaintiff stipulate to arbitration.” (Pairavi Decl., ¶ 9.) On August 31, 2022, Plaintiff’s counsel emailed Defendant’s counsel and requested Defendant make available for inspection the original copy of the arbitration agreement, but Defendant’s counsel never responded to Plaintiff’s counsel’s request. (Pairavi Decl., ¶¶ 15-16.)

However, as noted by Defendant, Plaintiff does not provide legal authority to support her position that the failure to produce an arbitration agreement in response to a prelitigation document request is evidence of forgery.

Plaintiff’s counsel also states that “Plaintiff propounded discovery regarding the authenticity of the arbitration agreement upon Defendant, including Requests for Production of Documents.” (Pairavi Decl., ¶ 17, Exs. F-G.) Plaintiff’s counsel states that in a supplemental response to Request for Production No. 1, which requested that Defendant produce “ALL original DOCUMENTS signed by PLAINTIFF, including but not limited to the original arbitration agreement purportedly signed by PLAINTIFF,” Defendant stated, in pertinent part, “Defendant is unable to comply with this request because no responsive documents are in Defendant’s possession, custody or control as the document containing Plaintiff’s wet signature was destroyed due to environmental factors in the storage room at Plaintiff’s former worksite where it was stored.” (Pairavi Decl., ¶ 18, Ex. H.)

Plaintiff notes that Defendant’s counsel asserts in her supporting declaration that “[a]fter conducting a reasonable search and inquiry, my investigation revealed that Plaintiff’s personnel file was kept at the facility at which she worked, and about one or two years ago a number of boxes containing personnel files was destroyed by a vandal who defecated on them.” (Oki Decl., ¶ 4.) As set forth above, the Court sustains Plaintiff’s evidentiary objection to this statement. Plaintiff also asserts that this explanation contradicts Defendant’s written discovery responses wherein it stated that the original document was destroyed due to “environmental factors.” (Opp’n at p. 9:5-25; Pairavi Decl., ¶ 18, Ex. H.)  Defendant counters that “[i]f the use of ‘environmental factors’ - an undefined term - was vague and ambiguous to Plaintiff’s counsel, he could have met and conferred on this point but he failed to do so.” (Reply at p. 4, fn. 2.)

            Defendant also asserts that Plaintiff’s forgery argument is contradicted by her own declaration. Defendant notes that in her declaration, Plaintiff does not explicitly dispute the existence of the Agreement, nor that it is her signature on the Agreement. Rather, Plaintiff states, inter alia, that “I do not recall signing an agreement where I waived my right to pursue court action or trial by jury against the Defendant.” (Robles Decl., ¶ 13.) In the reply, Defendant cites to Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 756, where the Court of Appeal noted, “[t]hat evidence does not create a factual dispute as to whether plaintiffs signed the agreement. The declarations explicitly acknowledge that plaintiffs signed a ‘stack of documents’ and do not deny that the stack included the agreement. Although plaintiffs state they do not recall signing the agreement, there is no conflict between their having signed a document on which their handwritten signature appears and, two years later, being unable to recall doing so. In the absence of any evidence that their purported signatures were not their own, there was no evidence that plaintiffs did not in fact sign the agreement.” Defendant asserts that here, “[e]xactly like the Iyere plaintiffs, Plaintiff merely claims that she does not recall ever receiving a copy of the Agreement or signing the Agreement. Indeed, the facts of the instant action are even more favorable for [Defendant] because Plaintiff signed the Agreement in 2017, which is six years prior to the submission of her declaration establishing that she could not ‘recall’ signing the Agreement.” (Reply at p. 7:1-5.)

Plaintiff also asserts that “Defendant provides no explanation for the near two-year gap between implementation of its arbitration policy and the date of Plaintiff’s purported signature.” (Opp’n at p. 8:1-2.) As set forth above, Ms. Macenko states in her declaration that Defendant “implemented a pre-dispute arbitration agreement for new California employees in or around July 2015, which was also presented to its then-current workforce on a rolling basis.” (Macenko Decl., ¶ 7.) Defendant then states that Plaintiff signed the Agreement “during her employment on May 26, 2017.” (Ibid.) But as noted by Defendant, Plaintiff does not provide legal authority to support how this argument is relevant and/or furthers her forgery claim. Defendant also points out that Ms. Macenko declaration states that “[Defendant] implemented a pre-dispute arbitration agreement for new California employees in or around July 2015, which was also presented to its then-current workforce on a rolling basis.” (Macenko Decl., ¶ 7, emphasis added.)

Plaintiff also cites to Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169, where the Court of Appeal noted that “in her declaration, Lopez made significant assertions in paragraphs two (that Gamboa was employed by the Clinic for about two months in 2018), three (that ‘plaintiff’ signed the arbitration agreement) and four (that the agreement was in effect during ‘plaintiff’s’ employment). But Lopez did not provide the requisite preliminary facts to show she had personal knowledge about what she said in those paragraphs. (See Evid. Code,      § 403, subd. (a)(2); see id., § 702, subd. (a) [‘[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.’].) Lopez’s boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,’ is not sufficient to establish personal knowledge.” Plaintiff contends that “[t]he evidence submitted by Defendant here is similarly deficient. The current human resources director, Ms. Macenko, does not provide personal knowledge of whether Plaintiff actually signed the arbitration agreement.” (Opp’n at p. 10:15-18.) Plaintiff’s counsel also indicates that “[i]n response to Special Interrogatory No. 9, which asked Defendant “IDENTIFY all persons whom were present when PLAINTIFF purportedly signed an arbitration agreement with YOU” Defendant stated, “Defendant is unaware who was present when Plaintiff signed the Arbitration Agreement.” (Pairavi Decl., ¶ 19, Ex. I.)

But as noted by Defendant, Ms. Macenko’s declaration is stronger than the declaration analyzed in Gamboa (discussed above.) Ms. Macenko states that she is the Human Resources Director (Field Support) of Defendant, and that her “duties and responsibilities include providing Human Resources assistance and support to the worksite which Plaintiff…worked at for the Company. Part of my duties and responsibilities include being a custodian of records for personnel files of employees at worksites including, but not limited to, the location at which Plaintiff worked.” (Macenko Decl., ¶ 1.) Ms. Macenko also states that she has been employed by Defendant since January 2013 in various Human Resources capacities. (Ibid.) In addition,       Ms. Macenko states, “I have thoroughly reviewed Plaintiff’s personnel file and other employment records, which were maintained and relied upon by [Defendant] in the ordinary course of its business relating to Plaintiff, and am accordingly familiar with her employment and all documents she executed during her employment. Plaintiff’s records are available to me in the ordinary course of the performance of my job responsibilities.” (Macenko Decl., ¶ 4.)

            Based on the foregoing, the Court finds that Defendant has demonstrated the existence of an arbitration agreement. Further, Plaintiff does not dispute that the Agreement covers the claims alleged in the Complaint. Therefore, the burden now shifts to Plaintiff to prove a ground for denial.¿¿ 

B.    Grounds to Deny Arbitration 

Plaintiff asserts in the opposition that her signature was obtained via fraud such that the Agreement is not enforceable.

Plaintiff cites to Civil Code section 1572, which provides that “[a]ctual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; 3. The suppression of that which is true, by one having knowledge or belief of the fact; 4. A promise made without any intention of performing it; or, 5. Any other act fitted to deceive.”

Plaintiff also cites to Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at page 428, where the Court noted that “plaintiffs’ functional illiteracy in English, together with other party’s misrepresentations regarding the character of the written contract, incomplete oral reading of the agreement, and urgings that plaintiffs sign it without reading it themselves or obtaining independent advice, held sufficient to support finding of fraud in the inception.” (Citing C. I. T. Corp. v. Panac (1944) 25 Cal.2d 547, 553-560.)

Plaintiff states in her declaration in opposition to the motion that “I am not able to read and understand English documents, especially ones of a complex nature.” (Robles Decl., ¶ 7.)

Plaintiff further states that “[o]ver the course of my employment with the Defendant, I was sometimes brought documents to sign during my work shift,” and that “[t]he documents would sometimes be printed in both Spanish and English, and sometimes, they were printed in English only.” (Robles Decl., ¶¶ 8-9.) In addition, Plaintiff states that “when the Defendant brought me documents to sign, Defendant’s representative would stand and wait for me to sign it. I then signed it and immediately gave it back in that moment it was presented to me during the shift.” (Robles Decl., ¶ 10.) Plaintiff states that “[h]ad Defendant explained to me the effect of signing an arbitration agreement, or truthfully explained to me the nature of such an agreement, or provided me a copy of an arbitration agreement in Spanish, I would have declined to sign it.” (Robles Decl., ¶ 16.) Plaintiff contends that “[w]hile Plaintiff stresses that the Court should conclude the arbitration agreement is a forgery, even if does not do so, it should find these facts are sufficient to establish fraud in the execution as defined by Civil Code § 1572.” (Opp’n at     p. 13:5-7.)

            But as set forth above, in Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at page 428, cited by Plaintiff, the Court noted that “plaintiffs’ functional illiteracy in English, together with other party’s misrepresentations regarding the character of the written contract, incomplete oral reading of the agreement, and urgings that plaintiffs sign it without reading it themselves or obtaining independent advice, held sufficient to support finding of fraud in the inception.” (Citing C. I. T. Corp. v. Panac, supra, 25 Cal.2d at pp. 553-560.) As noted by Defendant, Plaintiff does not allege that Defendant made any false statements to induce her execution of the Agreement. In addition, Defendant notes that Plaintiff’s declaration does not state that she was prohibited from having someone translate the agreement; nor that she was given a time limit in which to review the agreement or that she could not ask questions with regards to its contents. As set forth above, Ms. Macenko states in her declaration that “[a]s part of the rollout, employees at Plaintiff’s worksite were presented with the arbitration agreement and was given unlimited time to review it and ask questions, if any, before signing.” (Macenko Decl., ¶ 7.)

Defendant also asserts that “[a]ssuming, arguendo, that Plaintiff was unaware of what she was signing due to a language barrier, controlling authority still requires the enforcement of the agreement between the parties.” (Reply at p. 7:22-23.) Defendant cites to Upton v. Tribilcock (1875) 91 U.S. 45, 50, where the United States Supreme Court found that “[i]t will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission.”

Based on the foregoing, the Court does not find that Plaintiff has demonstrated that Plaintiff’s signature was obtained through fraud. 

Conclusion

For the foregoing reasons, Defendant’s motion to compel arbitration is granted. The entire action is stayed pending completion of arbitration of Plaintiff’s arbitrable claims.

The Court sets an arbitration completion status conference on August 19, 2024, at 10:00 a.m. in Dept. 50. The parties are ordered to file a joint report regarding the status of the arbitration five court days prior to the status conference, with a courtesy copy delivered directly to Department 50.¿¿¿ 

Defendant is ordered to provide notice of this Order.¿¿ 

DATED:  August 17, 2023                            

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court