KENDALL VS. HAT CREEK CONSTRUCTION & MATERIALS, INC.

CASE NUMBER: 25CV-0208306 Tentative Ruling on Motion to Compel Arbitration: Plaintiff Cindy Kendall moves to compel arbitration on her Complaint filed July 29, 2025. Defendant Hat Creek Construction & Materials, Inc. opposes the motion.

As a preliminary matter, Defendant filed a document titled “Defendant Creek & Construction Materials, Inc.’s Objections to Portion of Reply Brief and Declarations of Jonathan Kaldas and Cindy Kendall” on August 18, 2026. There is no explanation regarding why objections to the declarations filed with the moving papers were not made at the time the Opposition was filed and Defendant instead waited until Plaintiff had filed their Reply to object. It is surprising to the Court that Defendant is arguing about whether the agreement produced by Defendant in discovery can be admitted. The objection to the agreement and ¶ 2 of the Declaration of Jonathan Kaldas are overruled. The remaining objections are not to evidence, but to Plaintiff’s argument and need no ruling.

Request for Judicial Notice. In the Declaration of Benjamin L. Kennedy, Defendant requests the Court take judicial notice of the Declaration of Jonathan Kaldas filed June 23, 2026 and the Court’s Ruling dated July 13, 2026. The request is granted pursuant to Evid. Code § 452(d).

Merits. Generally, the analysis of a motion to compel arbitration starts with whether an agreement to arbitrate signed by the parties exists and whether the agreements covers the claims asserted. Here, the parties do not dispute either. While Defendant objected to the agreement being admitted into evidence for a lack of foundation, there has been no evidence presented that would lead the Court to conclude that the agreement attached as Ex. 1 to the Declaration of Jonathan Kaldas is anything other than an agreement signed by Plaintiff and an authorized representative of Defendant. Neither party has asserted that the claims alleged are not covered by the agreement. Neither party has raised any issues of either substantive or procedural unconscionability. Defendant opposes the motion on the basis of waiver and the transportation worker exemption.

To establish waiver under generally applicable contract law, the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it. (Lynch, supra, 3 Cal.5th at p. 475; see Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [44 Cal. Rptr. 2d 370, 900 P.2d 619] (Waller) [burden is on party claiming waiver “‘to prove it by clear and convincing evidence’”]; 30 Cal.Jur.3d, supra, Estoppel and Waiver, § 38.)

Under the clear and convincing evidence standard, the proponent of a fact must show that it is “highly probable” the fact is true. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995 [266 Cal. Rptr. 3d 329, 470 P.3d 41] (O.B.).) The waiving party's knowledge of the right may be “actual or constructive.” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41 [124 Cal. Rptr. 852].) Its intentional relinquishment or abandonment of the right may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable fact finder to conclude that the party had abandoned it. (Lynch, supra, 3 Cal.5th at p. 475.)

Quach v. California Commerce Club, Inc. (2024) 16 Cal 5th 562, 584.

Plaintiff has presented evidence that she does not recall signing the agreement and did not have a copy in her possession before Defendant produced it in discovery on June 5, 2026. Plaintiff Dec. ¶ 4. Plaintiff had served Request for Production, Set One on September 24, 2025 and Defendant provided a written response on October 28, 2025. Kaldas Dec. ¶ 4-5. In reviewing Request for Production, Set One, the Court notes that Request for Production No. 3 seeks Plaintiff’s complete personnel file. Therefore, the agreement should have been produced. The Court further notes that when Plaintiff reached out on June 2, 2026 asking for Defendant to supplement, No. 3 was not included. Kaldas Dec. ¶ 6.

Before the Court is a situation in which Defendant should have produced the agreement nearly ten months ago. Instead, Defendant failed to provide the agreement. Plaintiff has provided evidence that she was not aware of the agreement until it was produced on June 5, 2026. Defendant has provided no evidence to dispute Plaintiff’s lack of knowledge of the agreement. Defendant has provided no evidence that Plaintiff was provided a copy of the agreement after signing. The Court will not consider any actions taken prior to June 5, 2026 when evaluating whether Plaintiff has waived her right to compel arbitration because that is the earliest date during the pendency of this case that Plaintiff was aware of the agreement.

After June 5, 2026, Plaintiff filed a Motion for Leave to File First Amended Complaint that was objected to by Defendant for being improperly noticed. On July 13, 2026, the Court denied the motion without prejudice due to notice issues. Also after June 5, 2026, Plaintiff’s Counsel filed a declaration on June 23, 2026. In this declaration, counsel noted that an arbitration agreement had been produced and that Plaintiff intended to file a petition to compel arbitration as to her individual wage and hour claims.

Plaintiff’s Counsel also noted that he had recently become aware of a class action against Defendant that Plaintiff was able to opt out of.

A single motion for leave to amend and the declaration do not amount to a waiver of the right to compel 8

arbitration. As the moving party, Defendant must prove waiver by clear and convincing evidence. Defendant has not met this burden and the Court will not find waiver.

Next, Defendant argues that Plaintiff is exempt from the FAA under 9 U.S.C. § 1 which reads,

“Maritime transactions”, as herein defined, means charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction; “commerce”, as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. 9 U.S.C. § 1.

Defendant has presented evidence that Defendant’s business involves road construction and related jobs throughout California, Northern Nevada, and Southern Oregon, that Plaintiff drove a dump truck hauling materials for mostly public works projects for Caltrans, and on some occasions, drove from California to another state to perform her job. Dec. Hutchings ¶ 4-6.

The agreement at issue is governed by the Federal Arbitration Act per ¶ 9 of the agreement itself. As the opposing party, Defendant shoulders the burden of demonstrating whether an exemption to the FAA applies. Betancourt v. Transportation Brokerage Specialists, Inc. (2021) 62 Cal. App. 5th 552, 559. Based on the evidence provided by both parties, it is clear that Plaintiff was not a seaman or railroad employee. Therefore, the Court analyzes whether Plaintiff is in a “class of workers engaged in foreign or interstate commerce.”

This category is limited to “transportation workers” engaged in foreign or interstate commerce. Vela v. Harbor Rail Service of California, Inc. (2026) 120 Cal. App. 5th 353, 363, quoting Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 109. There is a two-step framework. First is to define the relevant class of workers to which the employee belongs with the determination being based on the actual work activity of the employee specifically and the work that was, as a whole, typically carried out.

Doss v. Tesla, Inc. (2026) 121 Cal. App. 5th 81. The only evidence before the Court regarding the exemption is the Declaration of Weston Hutchings and portion of Plaintiff’s deposition. Defendant and its employees primary performed construction on public works projects. Dec. Hutchings ¶ 5. During the time Plaintiff worked for Defendant, she drove a dump truck hauling materials from various locations on mostly public works projects for Caltrans. Id. ¶ 6. Defendant provided evidence that Plaintiff drove to and from Nevada in August and September of 2023, but it is unclear is this was once, daily, weekly, etc.

Id. ¶ 7. Plaintiff again worked a Caltrans job between April 4, 2023 and June 13, 2023 in which Plaintiff and other drives hauled materials from Nevada to California. Id. ¶ 8. It is again unclear how often this was. Plaintiff testified that the of the locations she’d go down to was Nevada. Plaintiffs’s depo., p. 22, ln.

24.

The second step is to determine whether the class of workers is engaged in foreign or interstate commerce. Southwest Airlines v. Saxon (2022) 596 U.S. 450. In making this determination, the Supreme Court wrote:

§1 exempted only contracts with transportation workers, rather than all employees, from the FAA. See id., at 119, 121 S. Ct. 1302, 149 L. Ed. 2d 234. And, while we did not provide a complete definition of “transportation worker,” we indicated that any such worker must at least play a direct and “necessary role in the free flow of goods” across borders. Id., at 121, 121 S. Ct. 1302, 149 L. Ed. 2d 234. Put another way, transportation workers must be actively “engaged in transportation” 9

of those goods across borders via the channels of foreign or interstate commerce. Ibid. Id. at 458.

Whether Plaintiff and her coworkers were actively engaged in transportation of goods across the border is a question not answered by Defendant’s evidence. Defendant has provided evidence of, at best, infrequent crossing into Nevada. Defendant did not adequately address infrequent crossings of the border. While not controlling, this has been addressed in the Third Circuit where an Uber driver argued that Uber drivers were transportation workers exempt from the FAA.

Singh emphasizes a single sentence—the Court's statement that "any class of workers directly involved in transporting goods across state or international borders falls within § 1's exemption." Saxon, 142 S. Ct. at 1789. As the rest of the opinion makes clear, this does not mean that rare border crossings are enough to make interstate transportation central to a class of workers' job description. Rather, we consider the "actual work" that class members "typically carry out." Id. at 1788. Incidental border crossings are insufficient if a class of workers is not typically involved with the channels of interstate commerce.

Wallace, 970 F.3d at 800 ("[S]omeone whose occupation is not defined by its engagement in interstate commerce does not qualify for the exemption just because she occasionally performs that kind of work."); Waithaka, 966 F.3d at 25 (noting that crossing state lines is not the "touchstone of the exemption's test"). Singh v. Uber Techs, Inc. (2023) 67 F. 4th 550, 559.

Defendant has simply failed to meet its burden of showing that Plaintiff is exempt from the FAA. The evidence shows that Plaintiff was a truck driver who hauled materials for construction of roads or highways in California and only occasionally crossed the border to obtain such materials. Occasional work is insufficient. Merely hauling materials that are used to build roads or highways that can be driven on to leave the state or support interstate commerce is also too attenuated and Defendant provided insufficient support for any argument in that regard.

Plaintiff’s Motion to Compel Arbitration is GRANTED. The matter is stayed pending arbitration and all currently pending hearing dates are vacated. The matter will be on calendar on Monday, December 21, 2026 at 9:00 a.m. in Department 63 for review regarding status of arbitration. The parties are ordered to file either a joint or separate status statements no less than five court days prior to the hearing. Plaintiff provided a proposed Order, however it will be modified as Plaintiff listed the American Arbitration Association when the agreement calls for arbitration through JAMS.

KUHN, ET AL. VS. DIGNITY HEALTH, ET AL.