Lomeli vs GAF Materials et al

TENTATIVE RULING(S) FOR September 3, 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 vs GAF Materials et al

_____________________________________________________________________________

TENTATIVE RULING:

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.

Having considered all the submitted papers, the Court rules as follows:

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:

“Disputes Subject to Arbitration: 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. 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”).:

It further provides:

“Except as provided below, Individual and the Company voluntarily waive all rights to trial in court

before a judge or jury on all Claims covered by this Agreement. Claims against the Company

subject to this Agreement shall include claims against the Company’s parents, subsidiaries,

affiliates, franchisees, alleged agents, and alleged joint or co-employers, and their respective

directors, officers, employees, agents, and clients, whether current, former, or future.”

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, Stoker v. Blue Origin, LLC (2026) 120 Cal.App.5th 91 and Phan v.

Knight Sacramento SU Inc. (2026) 121 Cal.App.5th 641. 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.)

Finally, most recently in Phan, the Court of Appeals affirmed Cook, holding that while not all

arbitration agreement covering all claims including those unrelated to employment are per se

unconscionable, an agreement that expressly includes claims outside of the employment

context—without justification—may be found to be overly broad. (Phan, supra, 121 Cal.App.5th

at p 652.)

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. Further, the Agreement

includes third-party beneficiaries who, Express has not established are only in the business of

employment and as such, a covered claim could easily include claims unrelated to Plaintiff’s

employment.

Express further argues its broad definition of claims is a business necessity and justifiable as it

relies on third-party clients to provide work for its employees. “[E]mployment contracts can

provide a ‘margin of safety’ that grants extra protection to the party with superior bargaining

power if there is a legitimate commercial need for doing so.” (Id. at p. 655. Internal citations

omitted.) However, the “business realities” giving rise to the commercial need must either be

explained in the contract itself or must be factually established. (Ibid.) The Court finds Express

fails to factually establish a legitimate commercial need for the Agreement’s broad definition of

claims. While provides some facts to establish a legitimate business need for the inclusion of

certain third-parties such as Express’s franchisees or affiliates, this is not the complete list of

third-parties the Agreement purports to encompass. The Agreement includes claims from “the

Company’s parents, subsidiaries, affiliates, franchisees, alleged agents, and alleged joint or co-

employers, and their respective directors, officers, employees, agents, and clients, whether

current, former, or future.” Particularly notable is the inclusion of the fact that this encompasses

“current, former or future” individuals and entities. No justification is provided as to why such an

expensive list is needed.

Finally, Express argues its third-parties are included in the Agreement under the definition of “the

Company” and as such, the provision is mutual. The Court is not persuaded. The Agreement

states, in pertinent part, “The term “Company” encompasses these individuals and entities to

allow them to obtain the full benefits of this Agreement.” Such language does not expressly

state that Express’s third-parties are similarly bound in their obligation to arbitrate. Indeed, the

language earlier in the provision expressly stated that the provision only pertained to claims

“against the Company.”

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.