Judge: Theresa M. Traber, Case: 23STCV05902, Date: 2023-11-29 Tentative Ruling

Case Number: 23STCV05902    Hearing Date: November 29, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 29, 2023               TRIAL DATE: NOT SET

CASE:                         Jose Vallerivas v. Staffmark Investment LLC, et al.

CASE NO.:                 23STCV05902           

MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

MOVING PARTY:               Defendant Staffmark Investment, LLC, joined by Defendant Raul Najar

RESPONDING PARTY(S): Plaintiff Jose Vallerivas

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an employment discrimination and wage and hour action that was filed on March 15, 2023.  Plaintiff alleges that he was discriminated against and ultimately terminated because he took medical leave to recuperate from a back injury.  

Defendant Staffmark Investment, LLC, joined by Defendant Raul Najar, moves to compel arbitration and stay this action pending resolution of the arbitration.

TENTATIVE RULING:

Defendant Staffmark Investment, LLC’s Motion to Compel Arbitration is DENIED.

            Defendant Raul Najar’s Joinder to Motion to Compel Arbitration is DENIED.

DISCUSSION:

Defendant Staffmark Investment, LLC, joined by Defendant Raul Najar, moves to compel arbitration and stay this action pending resolution of the arbitration.

Request for Judicial Notice

            Defendants request that the Court take judicial notice of the Complaint in this action. This request is GRANTED pursuant to Evidence Code § 452(d) (court records.)

Plaintiff’s Evidentiary Objections to Declaration of Suzanne Perry

            Plaintiff asserts numerous evidentiary objections to the Declaration of Suzanne Perry offered in support of the motion to compel arbitration. The Court rules on these objections as follows:

Objection Nos. 2-3: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony.  

Objection Nos 4-5: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Secondary Evidence Rule is not applicable to this testimony.

Objection Nos. 6-11: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. 

Objection Nos. 12: SUSTAINED as to the second and third sentences as improper oral testimony of the contents of the writing. The Signature Acknowledgement Statement speaks for itself.  SUSTAINED for lack of personal knowledge regarding Plaintiff’s specific circumstances, and otherwise OVERRRULED.

Objection No. 13: SUSTAINED as improper legal conclusion and oral testimony of the contents of the writing. The Signature Acknowledgement Statement speaks for itself.  SUSTAINED for lack of personal knowledge regarding Plaintiff’s specific circumstances.

Objection No. 14: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Secondary Evidence Rule is not applicable to this testimony.

Objection No. 15: SUSTAINED as improper legal conclusion and oral testimony of the contents of the writing. The Signature Acknowledgement Statement speaks for itself.

Objection Nos. 16-19: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. Testimony objected to in Nos. 16 and 18 do not include improper legal conclusions.

Objection Nos. 20-23: OVERRULED. Does not lack foundation or personal knowledge. Not speculation.

Objection Nos. 24-26. OVERRULED. Does not lack foundation or personal knowledge. Not improper expert testimony. 

Objection No. 27: OVERRULED. Does not lack foundation or personal knowledge. Not speculation.

Objection No 28: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. 

Objection No. 29: SUSTAINED as improper oral testimony of the contents of the writing. The Arbitration Agreement speaks for itself.

Objection No. 30: OVERRULED. Does not lack foundation or personal knowledge. Not speculation.

Objection No. 31: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not a legal conclusion.

            The Court declines to rule on the remainder of Plaintiff’s objections not listed here as the evidence to which those objections relate is not material to the Court’s ruling.

Plaintiff’s Evidentiary Objections to Declaration of Emily Giltner

            Plaintiff also offers numerous objections to the declaration of Emily Giltner in support of the motion. The Court rules on these objections as follows:

Objection Nos. 33-37: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. 

Objection Nos. 38-39: OVERRULED: This evidence is relevant on its face. “Prejudicial” is not a valid objection, and Plaintiff does not demonstrate why the probative value of this evidence is substantially outweighed by the risk of unfair prejudice. (See Evid. Code § 352.)

Objections Nos. 40-54: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. 

Objection No. 55: SUSTAINED as inadmissible hearsay.

Objection No. 56: SUSTAINED as inadmissible hearsay as to the IP address in the Equifax history and its use in connection with Plaintiff’s Employment Center user account. 

Objection No. 57: SUSTAINED as inadmissible hearsay as to the IP address in the Equifax history and its use in connection with Plaintiff’s Employment Center user account. Otherwise, OVERRULED: Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. Secondary Evidence Rule does not apply to this testimony.

Objection Nos. 58-63: SUSTAINED as improper oral testimony of the contents of written documents. The evidence speaks for itself.

Objection Nos. 64-66: OVERRULED. Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony.

Objection Nos. 67-68: As to the first sentence, SUSTAINED as improper oral testimony of the contents of written documents. The evidence speaks for itself.  As to the second sentence, OVERRULED: Does not lack foundation or personal knowledge. Not speculation. Not improper expert testimony. Secondary Evidence Rule does not apply to this testimony.

The Court declines to rule on the remainder of Plaintiff’s objections not listed here as the evidence to which those objections relate is not material to the Court’s ruling.

Plaintiff’s Evidentiary Objections to Declaration of Martin Li

            Plaintiff also offers an objection to the Declaration of Martin Li in support of the motion. However, as this evidence is not material to the Court’s ruling, the Court declines to rule on this objection.

Defendants’ Evidentiary Objections to Declaration of Jose Vallerivas

            Defendants raise several evidentiary objections to the Declaration of Plaintiff Jose Vallerivas filed in support of his opposition to this motion on October 19, 2023. The Court concurred with Defendants’ objections on the basis that the interpreter’s certification was inadequate and ordered Plaintiff to file and serve a proper certified translation on or before November 17, 2023. (November 1, 2023 Minute Order.) Plaintiff has done so. Defendants’ objections on that basis are therefore moot.

            As to the remainder of Defendants’ objections, Defendants assert that various portions of Plaintiff’s statements are “vague, ambiguous, and unintelligible, or conclusory,” that he lacks personal knowledge, that his statements are “improper conclusions, beliefs, opinions, or legal conclusions,” or that they are simply irrelevant. None of Plaintiff’s testimony is vague, ambiguous, or unintelligible, nor does it constitute an improper conclusion, belief, or opinion. Moreover, Plaintiff has demonstrated personal knowledge as to the things he has or has not seen or done. The Court is also not persuaded that any of this testimony is irrelevant.

            Accordingly, Defendants’ Objections Nos. 1-24 are OVERRULED.

Defendants’ Evidentiary Objections to Declaration of Melad Haddad

Defendants raise several evidentiary objections to the Declaration of Melad Haddad filed in support of the opposition to this motion.  The Court rules on these objections as follows:

Objection No 1: OVERRULED. Does not lack foundation or personal knowledge. Not an improper conclusion, legal or otherwise.

Objection No. 3: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Secondary Evidence Rule not applicable here.

Objection No. 4: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Secondary Evidence Rule not applicable here.

Objection Nos 9-10: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate.

Objection Nos. 11-12: SUSTAINED as improper oral testimony. The documents speak for themselves.

Objection Nos. 13-14: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Facially relevant.

Objection No. 15:  OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate.

Objection Nos. 16-17: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Not an improper conclusion, legal or otherwise.

Objection Nos. 18-21: SUSTAINED as improper arguments and legal conclusions.

Objection No. 22: SUSTAINED as to the conclusion that there are deficiencies in the agreement.

Objection Nos. 23-25: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Not an improper conclusion, legal or otherwise.

Objection Nos. 26-28: SUSTAINED as improper argument, except for the description of the JAMS website.

Objection No. 29: OVERRULED. Does not lack foundation or personal knowledge. Not a failure to authenticate. Secondary Evidence Rule not applicable here. Facially relevant evidence.

Objection to Exhibit Nos. 2-4: OVERRULED. Not lacking in foundation or personal knowledge. Not a failure to authenticate. Secondary Evidence Rule not applicable here.

The Court declines to rule on the remainder of Defendants’ objections not listed here as the evidence to which those objections relate is not material to the Court’s ruling.

Existence of an Arbitration Agreement

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

However, as to the burden of production, rather than persuasion, courts have articulated a three-step burden shifting process:

First, the moving party bears the burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” [citation] The moving party “can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party’s] signature.” [citation] Alternatively, the moving party can meet its burden by setting forth the agreement’s provisions in the motion. [citations] For this step, “it is not necessary to follow the normal procedures of document authentication.” [citation] If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.

If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. [citation] The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare 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. [citations]

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party. [citation].

(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165-66.) An electronic record or signature is attributable to a person if it was the act of the person. (Civ. Code § 1633.9(a).) The act of the person may be shown in any manner. (Id.) As described by the Court of Appeal, “the burden of authenticating an electronic signature is not great.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.)

            Defendants have provided a copy of an Arbitration Agreement dated May 11, 2020 bearing Plaintiff’s electronic initials and a signature by Defendant Staffmark’s Employer Representative, Suzanne Perry. (Declaration of Suzanne Perry ISO Mot. Exh. B.) Section 1.1 of this agreement states:

This Agreement between the Parties establishes procedures for resolution by arbitration of any Employment Claim(s) arising out of Employee's application or candidacy for employment, employment, or cessation of employment with Company, whether such Employment Claim(s) are brought by the Employee against the Company or by the Company against the Employee. The Parties agree that any Excluded Claim is not subject to this Agreement.

(Perry Decl. Exh. B. § 1.1.) Above the initial line is a sentence in bold stating “By initialing the box below, I certify that I have read the above information, and I agree to the conditions of hiring.” (Id.) Defendants have also provided evidence of Staffmark’s onboarding process (Perry Decl. ¶¶ 15-28), the functioning of Staffmark’s electronic onboarding system (Declaration of Emily Giltner ISO Mot. ¶¶16-20, 23-27, 32-43), and records showing that Plaintiff signed the agreement. (Giltner Decl. Exhs. C-D.) Defendants have thus met their burden of production to establish the existence of an arbitration agreement.

            Plaintiff first argues in opposition that Defendants’ copy of the agreement is not authentic. Plaintiff claims that Defendants produced an altered version of the document, offering instead a copy purportedly contained in Plaintiff’s personnel file and produced in response to a subpoena for records. (See Haddad Decl. Exh. 5.) No subpoena was included with Plaintiff’s evidence to demonstrate the origin of this document. However, notwithstanding that issue, Plaintiff argues that the copy in Plaintiff’s personnel file had a longhand signature for Plaintiff and no signature line for the Employment Representative. (Id.) However, even the copy produced by Plaintiff shows his initials in the same location as in the document produced by Defendants. (Compare Haddad Decl. Exh. 5, Perry Decl. Exh. B.) Thus, the variance between the documents does not suffice to demonstrate that Plaintiff did not agree to arbitration. Nor is the Court persuaded by Plaintiff’s assertion that Plaintiff’s initials are merely an acknowledgement of receipt, not an agreement to arbitrate. The language directly above Plaintiff’s initials, taken in context and read to give effect to the entirety of the document, expressly identifies initialing the document as agreeing to its terms as a condition of hiring. (Id.) The Court therefore finds that Plaintiff has not carried his burden to challenge the authenticity of the Agreement.

Plaintiff also argues in opposition that the Arbitration Agreement is void because he does not speak English, and thus did not know what he was signing at the time. A contract is void when a party does not intend to enter the contract for lack of knowledge of what the party is signing. (See Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 415 [arbitration agreement void if fraud deprived signatory of knowledge of what was being signed].) Plaintiff categorically states in his declaration in that he only speaks, reads, and writes in Spanish, not English. (Declaration of Jose Vallerivas ISO Opp. ¶ 3.) Plaintiff also states that he does not recall signing any of these documents, that if he did receive those materials, they were not in Spanish, nor were they ever translated, and, moreover, that he would not have agreed to arbitration had he been informed of the contents of the agreement. (Id. ¶¶ 4-9.)

Defendants argue in reply that Plaintiff’s inability to understand the Agreement does not relieve him from having to comply with its terms. Defendants assert that a lack of English fluency is not a basis to invalidate a contract. But Defendants’ cited authority does not support this position. For example, although A&M v. Produce Co. v. FMC Corp. states “that a contract term is not read or understood by the nondrafting party . . . will not authorize a court to refuse to enforce a contract,” this statement refers in context to a party’s failure to read or inability to understand legal jargon, not a party’s lack of literacy in English. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.) Similarly, although Randas v. YMCA of Los Angeles upheld a contract signed by a party who was only literate in Greek and not English, it did so on the basis that the plaintiff did not demonstrate fraud or knowledge by the defendant of her lack of English fluency. (Randas v. YMCA of Los Angeles (1993) 17 Cal.App.4th 158, 163.) These authorities thus do not preclude the arguments asserted by Plaintiff here.

            Second, Defendants argue that the evidence shows that Plaintiff possesses some English fluency. Specifically, Defendants offer evidence that Plaintiff provided personal identifying information as part of his onboarding that was responsive to requests in English, such as his contact information, tax filing information, veteran status, and social security number. (See Declaration of Suzanne Perry ISO Reply ¶¶ 12-13, Exh. 1.) Defendants also offer evidence of text messages from Plaintiff to Defendant’s staff in English concerning employment matters which they claim demonstrate that Plaintiff has some literacy in English. (Id. Exhs. 2-3.) A close reading of the evidence belies Defendants’ arguments, however. Plaintiff’s “text messages” consist of nearly unintelligible statements in response to job announcements, to wit:

if you can give me the $ 15 why at the job I was before COVID-19 I was paying the 15 and then I would not leave this job for something less and I want to leave this because they no longer want to increase my salary and I am oh we are waiting that there will be again and well if you have a better number than that I encourage you today what do you say  Claudia ... thank you

(Perry Reply Decl. Exh. 2.) and “if it was possible that you nicked at $15 if I grabbed it” (Id. Exh. 3.) These messages are not evidence of fluency in English and certainly do not suffice to demonstrate that Plaintiff had sufficient literacy to understand an arbitration agreement when it was presented to him. Similarly, Defendants’ evidence that Plaintiff provided basic personal information on a form does not demonstrate sufficient literacy to understand an arbitration agreement, especially given the startling lack of fluency shown above. (See Perry Reply Decl. Exh. 1.) Nor is the Court persuaded by Defendants’ contention that they were uninformed that English was not his primary language. Plaintiff informed Defendants that Spanish was his primary language (see Haddad Decl. Exh. 4.) and Defendants’ own evidence demonstrates a lack of fluency in English (Perry Reply Decl. Exhs. 2-3.)

            After reviewing the evidence presented by both sides, the Court concludes that Plaintiff has shown by a preponderance of the evidence that he lacks fluency in English and therefore lacked knowledge of the Arbitration Agreement when he signed it. The Court therefore finds that the agreement is void because there was no intention to agree to arbitration.

            Defendants are therefore not entitled to compel this matter to arbitration.

Defendant Raul Najar’s Joinder to Motion

            Defendant Raul Najar joins Defendant Staffmark’s Motion to Compel Arbitration.

            A party may join another party’s motion by filing a notice of joinder, which is treated as a separate motion seeking the same relief, subject to the same procedural and substantive requirements. (See, e.g., Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661 [joinder to special motion to strike must establish factual foundation and request affirmative relief]; Frazee v. Seely (2002) 95 Cal.App.4th 627, 636–37 [joinder to motion for summary judgment must be timely and be supported by separate statement of undisputed facts].)

            Here, Defendant Najar’s notice of joinder, served by email on August 7, 2023, suffices to meet the requirements for a regularly noticed motion set for November 1, 2023. (See Code Civ. Proc. § 1005(b).) The joinder is therefore timely.

            Defendant Najar’s joinder seeks to compel Plaintiff’s claims against him to arbitration under the same Arbitration Agreement addressed above, relying on the evidence produced by Staffmark in support of the motion. The Agreement expressly states that it “is also intended to apply to any Employment Claims the Employee may have against the Company’s current or former officers, directors, employees, agents, or customers.” (Perry Decl. Exh. B. § 2.2.) Ms. Perry states under penalty of perjury that Defendant Najar was employed by Staffmark from June 2010 to December of 2021. (Perry Decl. ¶¶ 12-13.)

            Defendant Najar argues that the claims against him are within the scope of the arbitration agreement as they fall entirely within the substantive definition of “Employment Claims” as defined by the Agreement. Plaintiff does not dispute this contention, nor does he challenge the joining Defendant’s right to pursue arbitration beyond arguing that the Agreement itself is invalid or unenforceable. The Court therefore finds that Defendant Najar is entitled to join Defendant Staffmark’s Motion. However, as the Court has found that Staffmark is not entitled to compel this matter to arbitration, Defendant Najar is likewise not entitled to do so.

CONCLUSION:

            Accordingly, Defendant Staffmark Investment, LLC’s Motion to Compel Arbitration is DENIED.

            Defendant Raul Najar’s Joinder to Motion to Compel Arbitration is DENIED.

            Moving parties to give notice.

IT IS SO ORDERED.

Dated:  November 29, 2023                            ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.