Lomeli v. GAF Materials LLC

TENTATIVE RULING(S) FOR AUGUST 18, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Lomeli v. GAF Materials LLC

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On September 29, 2025, Defendant Express Employment Professionals, LLC (“Express”) filed the instant

Motion to Compel Arbitration of Plaintiff’s Individual PAGA Claim and to Stay the Representative PAGA

Claim (“Motion”), supported by declarations from Harvey H.H. Homsey (“Homsey”) and Nora Stilestein. On

October 20, 2025, Defendant GAF Materials, LLC (“GAF”) filed a Joinder in Express’s Motion (“Joinder”).

Plaintiff filed his Opposition to the Motion (“Opposition”) on January 27, 2026, supported by a declaration

from Plaintiff. Express filed its Reply on February 2, 2026, supported by a declaration from Ashley Rowlett

and objections to Plaintiff’s declaration (“Evidentiary Objections”).

On March 12, 2026, the Court continued the hearing and permitted the parties to file supplemental briefs.

On May 15, 2026, Express filed a Supplemental Brief in Support of its Motion. Plaintiff filed his

Supplemental Brief in Support of his Opposition on May 29, 2026.

Evidentiary Objections

Express objects to paragraph 5 of Plaintiff’s declaration on the grounds of speculation, irrelevance, lack of

foundation, and hearsay.

The Court SUSTAINS Express’s objections to Plaintiff’s statements at page 2, line 28 through page 3, line

1, and page 3, lines 6–7, on the grounds of hearsay and lack of foundation. Plaintiff states that the basis

for his conclusion that a “substantial amount of the products that I was involved with packing for shipment

were headed to other states outside of California” was based, at least in part, on conversations with his

coworkers. Plaintiff does not establish a foundation for those coworkers’ purported statements or

otherwise establish that the statements fall within an exception to the hearsay rule.

The Court OVERRULES Express’s remaining objections to paragraph 5 of Plaintiff’s declaration.

The Merits of Moving Defendants’ Motion

Contractual Relationship Between Plaintiff and Express

Express contends Plaintiff executed a Mutual Arbitration Agreement (“Agreement”) on September 11,

2024. According to Homsey’s declaration, the Agreement was executed as part of Plaintiff’s onboarding

documents. Plaintiff does not dispute that he signed the Agreement.

Based on the foregoing, the Court finds that Plaintiff entered into the Agreement and proceeds to the

enforceability of that Agreement.

Application of Federal and State Law

The Federal Arbitration Act (“FAA”) applies to arbitration agreements involving interstate commerce. (9

U.S.C. § 2; Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152

Cal.App.4th 1522, 1534.) “Involving commerce” is interpreted broadly and is the equivalent of “affecting

commerce,” which signals the broadest permissible exercise of Congress’s Commerce Clause power.

(Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56–57.) The party seeking to invoke the FAA bears

the burden of establishing that the transaction falls within the FAA’s coverage. (Shepard v. Edward

Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101.)

Here, the Agreement expressly provides:

“The Parties agree that the Company is engaged in transactions involving interstate commerce, and this

Agreement shall be enforceable under the substantive and procedural provisions of the Federal Arbitration

Act (‘FAA’), 9 U.S.C. §§ 1, et seq.”

The FAA, however, contains an exemption for “contracts of employment of seamen, railroad employees,

or any other class of workers engaged in foreign or interstate commerce.” (9 U.S.C. § 1.) The United

States Supreme Court has construed this residual clause to exempt transportation workers from the FAA.

(Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 119.) Whether an employee falls within the

exemption turns on the nature of the employee’s work, rather than the general nature of the employer’s

business. (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 455–56; Bissonnette v. LePage Bakeries

Park St., LLC (2024) 601 U.S. 246, 256.)

In Saxon, the United States Supreme Court held that airline ramp agents who frequently loaded and

unloaded baggage, airmail, and commercial cargo onto and from aircraft engaged in interstate

transportation were transportation workers. The Court explained that transportation workers must play a

direct and necessary role in the free flow of goods across borders and be actively engaged in

transportation of those goods. (Saxon, supra, 596 U.S. at pp. 458–59.) The Court cautioned, however, that

the exemption does not extend to every employee whose work has some connection to goods eventually

moving in interstate commerce.

Plaintiff argues that he falls within the transportation-worker exemption because he prepared and

packaged finished roofing shingles for shipment to customers outside California. Plaintiff relies principally

on Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152.

Ortiz is distinguishable. There, the plaintiff worked at a warehouse that received Adidas products from

mostly international locations. The products remained at the warehouse before being shipped to

consumers and retailers in various states. The plaintiff transported packages to and from storage racks,

assisted employees in obtaining packages for shipment, and assisted in preparing packages for their

subsequent shipment. The Ninth Circuit held that these workers handled goods while the goods remained

in the flow of interstate commerce and played a direct and necessary role in facilitating their continued

movement. (Ortiz, supra, 95 F.4th at pp. 1161–62.)

The circumstances here are materially different. Plaintiff's own description of his duties establishes that he

worked in the Fontana Plant’s folding room, where he retrieved flat shingles from a central pallet, folded

the shingles into a ridge shape, placed the finished product into a box, and placed the box on a conveyor

belt or pallet. The products were manufactured at the California facility. Plaintiff has not established that he

loaded the products onto vehicles transporting goods across state lines, unloaded goods arriving from

interstate transportation, or otherwise handled goods that were already moving through an interstate

transportation stream.

Plaintiff’s declaration that a substantial amount of the products he packed were ultimately shipped outside

California does not establish that his work itself was part of the interstate transportation of those products.

As noted above, the Court has sustained the hearsay and foundation objections to the portion of Plaintiff’s

declaration on which he relies for that assertion. Even assuming some of the shingles he packed were

ultimately shipped outside California, the relevant inquiry is the nature of Plaintiff’s work and his

relationship to the interstate movement of those goods.

The distinction between production/packaging work performed before goods enter the interstate stream

and work performed on goods already in interstate transportation is significant. In Gallegos v. Partners

Personnel-Management Services, LLC (2024) 2024 WL 3064400, the Fifth District considered a temporary

worker who packed and bagged pistachios at the end of a production line before the goods entered

interstate commerce. The court concluded that such work was production-line packaging rather than

transportation because the employee did not directly launch the goods into interstate commerce or

otherwise actively engage in their interstate transportation. Although Gallegos is unpublished and

therefore is not precedent under California Rules of Court, rule 8.1115, its reasoning is persuasive and

closely analogous to the facts presented here.

Accordingly, Plaintiff has not established that he belongs to a class of workers engaged in foreign or

interstate transportation within the meaning of 9 U.S.C. § 1. The FAA therefore applies to the Agreement.

Enforceability of the Agreement

An arbitration agreement is enforceable unless a generally applicable contract defense, such as

unconscionability, renders it unenforceable. (Code Civ. Proc., § 1281; Armendariz v. Foundation Health

Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) Unconscionability has both procedural and

substantive elements, and both must be present, although they need not be present to the same degree.

(Id. at p. 114; Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 492.) The analysis

employs a sliding scale: the greater the substantive unconscionability, the less procedural

unconscionability is required. (Ramirez, supra, 16 Cal.5th at p. 494.)

Procedural Unconscionability

Procedural unconscionability concerns the circumstances surrounding formation of the agreement and

focuses on oppression and surprise. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125–27.) Oppression may

arise from unequal bargaining power and the absence of meaningful choice; surprise concerns whether an

allegedly unfair provision was hidden or presented in a manner that frustrated reasonable expectations.

Plaintiff contends the Agreement was a contract of adhesion because it was presented on a take-it-or-

leave-it basis as a condition of employment. Plaintiff further asserts that he was not provided the

Agreement in advance or permitted to retain a copy, had no opportunity to consult counsel, was rushed

because other applicants were waiting to use the computer, and was told the documents were “standard

stuff” that needed to be signed quickly so he could begin work the following day.

The Court finds a minimal degree of procedural unconscionability.

The Agreement was presented as a condition of employment and Plaintiff had no ability to negotiate its

terms. That circumstance supports a finding of adhesion and some degree of procedural

unconscionability. (Cisneros Alvarez v. Altamed Health Services Corp. (2021) 60 Cal.App.5th 572, 591.)

At the same time, the Agreement is a short, three-page, standalone arbitration agreement rather than an

arbitration provision buried in a lengthy employment contract. There is insufficient evidence that Plaintiff

was subjected to the type of extraordinary pressure, deception, or surprise present in cases finding a

heightened degree of procedural unconscionability. See OTO, supra, 8 Cal.5th at pp. 127–28.

The Court therefore finds minimal procedural unconscionability.

Substantive Unconscionability

Substantive unconscionability concerns whether the terms of the agreement are overly harsh, unduly

oppressive, or unfairly one-sided. (OTO, supra, 8 Cal.5th at pp. 129–30.) In the employment context,

courts closely examine whether an arbitration agreement imposed by an employer allocates arbitration

obligations in a manner that unjustifiably favors the employer.

Here, Plaintiff identifies several provisions that he contends are substantively unconscionable. The Court

finds two provisions particularly significant: (1) the Agreement’s broad definition of covered claims; and (2)

the provision extending the arbitration obligation to Plaintiff’s heirs, spouse, successors, assigns, and

agents without a corresponding obligation imposed upon Express’s related entities and other beneficiaries.

The Agreement provides, in pertinent part:

“Except as provided below, both the Company and You (on behalf of Yourself as well as Your heirs,

spouse, successors, assigns, and agents) agree all legal disputes and claims between them shall be

determined exclusively by final and binding arbitration before a single, neutral arbitrator as described in

this Agreement.”

It further provides:

“Except as provided below, claims subject to this Agreement include without limitation: all claims pertaining

to Individual’s employment relationship with the Company, or the formation or termination of the

employment relationship (including application for employment or any background check form or process);

all claims for discrimination, harassment, or retaliation; wages; overtime; benefits; or other compensation;

breach of any express or implied contract; violation of public policy; negligence or other tort claims,

including without limitation: defamation, fraud, and infliction of emotional distress; and violation of any

federal, state, or local law, statute, regulation, or ordinance (‘Claims’).”

The Agreement begins with expansive language requiring arbitration of “all legal disputes and claims

between” the parties and then states that covered claims “include without limitation” employment claims,

tort claims, and violations of any federal, state, or local law. Thus, although many examples of covered

claims concern the employment relationship, the operative language is not expressly limited to claims

arising out of or relating to Plaintiff’s employment.

The Court recognizes that Ayala-Ventura v. Superior Court of Fresno County (2026) 119 Cal.App.5th 241

provides important guidance concerning broadly worded arbitration provisions. There, the Fifth District

construed an ambiguous arbitration agreement narrowly to apply only to employment-related claims and

distinguished Cook v. University of Southern California (2024) 102 Cal.App.5th 312 based on the

particular contractual language and circumstances. Ayala-Ventura emphasized that unconscionability is

highly contextual and that a broad agreement is not necessarily unconscionable in every employment

setting.

The Court nevertheless finds the Agreement here distinguishable from Ayala-Ventura and more closely

analogous to Cook and Stoker v. Blue Origin, LLC (2026) 120 Cal.App.5th 91. In Cook, the arbitration

agreement required arbitration of “all claims,” including claims unrelated to employment, and also required

arbitration of claims against broad categories of the employer’s related entities and personnel without

imposing a reciprocal obligation upon those entities. The Court of Appeal held those provisions

substantively unconscionable. (Cook, supra, 102 Cal.App.5th at pp. 324–28.)

Likewise, in Stoker, the Second District recently held substantively unconscionable an employment

arbitration agreement containing broad “any and all claims” language and provisions that extended

arbitration obligations to third parties without reciprocal obligations. The court concluded that multiple

defects, viewed together with procedural unconscionability, rendered the agreement unenforceable.

(Stoker, supra, 120 Cal.App.5th 91.)

Here, as in Cook, the Agreement imposes arbitration obligations beyond the core bilateral relationship

between Plaintiff and Express. Plaintiff is required to arbitrate claims not only for himself but also on behalf

of his heirs, spouse, successors, assigns, and agents. At the same time, the Agreement does not impose

a corresponding obligation upon Express’s related entities and other beneficiaries who may invoke the

Agreement. The resulting asymmetry is not merely a benefit incidentally conferred upon third parties.

Rather, it expands the universe of parties who may benefit from the arbitration requirement while leaving

Plaintiff subject to the corresponding burden.

Express argues that the Agreement should be construed as limited to Plaintiff’s employment relationship

because Express is a temporary staffing company and Plaintiff’s relationship with Express could only have

arisen in the employment context. The Court is not persuaded. As in Cook and Stoker, the Court cannot

rewrite the Agreement’s expansive language merely because a narrower construction would produce a

more reasonable result.

The Court therefore finds the Agreement contains multiple substantively unconscionable provisions.

Severability

Express argues that, even if portions of the Agreement are unconscionable, the Court should sever the

offending provisions and enforce the remainder.

Civil Code section 1670.5, subdivision (a), permits a court to refuse to enforce an unconscionable contract

or clause, or to sever or limit the offending provision. The California Supreme Court has clarified that there

is no bright-line numerical rule requiring either severance or invalidation. The appropriate inquiry is

whether the illegality can be cured through severance or restriction, whether the offending provisions are

collateral to the agreement’s main purpose, and whether enforcing the balance of the agreement would

further the interests of justice. (Ramirez, supra, 16 Cal.5th at pp. 516–18.)

The Court declines to sever the unconscionable provisions here.

First, the defect concerning the scope of covered claims cannot be cured simply by striking isolated

language. To limit the Agreement to employment-related claims would require the Court to add limiting

language that the parties did not include. Similarly, curing the lack of mutuality would require the Court to

add reciprocal obligations applicable to Express’s related entities or otherwise restructure the parties’

allocation of arbitration rights. Such action would constitute reformation or augmentation of the Agreement

rather than simple severance.

Second, the Agreement contains more than one substantively unconscionable provision, in addition to

minimal procedural unconscionability. The multiple defects concern the fundamental scope and bilateral

nature of the arbitration obligation rather than an isolated collateral provision.

Third, recent authority confirms that courts should not rewrite an adhesive employment arbitration

agreement to create bilateral terms that the employer could have included when the agreement was

drafted. In Stoker, the Second District declined to sever multiple unconscionable provisions because doing

so would require the court to add terms limiting the agreement and would not further the interests of

justice. (Stoker, supra, 120 Cal.App.5th at pp. 116–17.) Similarly, on remand in Ramirez, the Court of

Appeal held that multiple defects in an adhesive employment arbitration agreement supported refusing

enforcement rather than judicial modification of the agreement. (Ramirez v. Charter Communications, Inc.

(2025) 108 Cal.App.5th 1297, 1305–07.)

The same reasoning applies here. To enforce the Agreement, the Court would need to rewrite its scope

and alter the allocation of arbitration rights between Plaintiff and Express’s related entities and other

beneficiaries. The interests of justice would not be furthered by such judicial augmentation of an

agreement imposed as a condition of employment.

Accordingly, the Court finds the Agreement permeated by unconscionability and unenforceable in its

entirety.

GAF’s Joinder

GAF is not a signatory to the Agreement. GAF argues it may nevertheless invoke the arbitration provision

under principles of equitable estoppel because Plaintiff alleges that Express and GAF were joint

employers or agents of one another and because Plaintiff’s claims against GAF are purportedly “intimately

founded and intertwined” with the contractual relationship containing the arbitration provision.

A nonsignatory may, in appropriate circumstances, invoke an arbitration agreement under principles of

equitable estoppel where the plaintiff’s claims against the nonsignatory are dependent upon or founded

upon and inextricably intertwined with the underlying contractual obligations containing the arbitration

clause. (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 271–72.) The doctrine focuses on

the nature of the claims asserted against the nonsignatory.

GAF’s Joinder is DENIED.

Because the Court finds the underlying arbitration Agreement unenforceable as a result of

unconscionability, GAF cannot obtain greater arbitration rights than those available under the Agreement

itself. GAF, as a nonsignatory, cannot invoke an arbitration provision that the Court has determined is

unenforceable against the signatory Plaintiff.

Moreover, GAF has joined Express’s Motion rather than establishing an independent basis for arbitration

apart from the Agreement. Having determined that the Agreement is unenforceable, there is no

enforceable arbitration obligation upon which GAF may rely.

RULING

For the reasons stated above, the Court rules as follows:

1. SUSTAINS Express’s objections to Plaintiff’s statements at page 2, line 28 through page 3, line 1,

and page 3, lines 6–7, on the grounds of hearsay and lack of foundation.

2. OVERRULES Express’s remaining objections to paragraph 5 of Plaintiff’s declaration.

3. DENIES Express’s Motion to Compel Arbitration of Plaintiff’s Individual PAGA Claim and to Stay

the Representative PAGA Claim.

4. DENIES GAF’s Joinder in Express’s Motion.