Delmy Landverde vs Lusamerica Foods, Inc.

XVII. DEFENDANT’S REQUEST FOR JUDICIAL NOTICE Defendant requests judicial notice of the following items: (1) Order in Dolores Gallegos v. Partners Personnel-Management Service LLC, et al. (June 24, 2024, No. FF086889 [2024 Cal.App.Unpub.LEXIS 3883]): Exhibit A; (2) Order in J. Ascencion Santana v. Studebaker Health Care Center LLC (2026) 120 Cal.App.5th 1: Exhibit B; and (3) Order in Vela v. Harbor Rail Services of California, Inc. (May 1, 2026, No. B344723) [2026 Cal. App. LEXIS 274, at *1]): Exhibit C.

Evidence Code section 452, subdivision (d), permits judicial notice of records of any court of this state or any court of record of the United States or of any state of the United States. (Code Civ. Proc., § 452, subd. (d).) Exhibits A-C are court records, therefore they are proper items of judicial notice. Thus, the Court takes judicial notice of the existence of the documents and the legal effect of the court orders but does not take notice of the truth of any disputed contents. (Oh v. Teachers Ins. & Annuity Assn. of America (2020) 53 Cal.App.5th 71, 79-81.) Accordingly, Defendant’s request for judicial notice is GRANTED. XVIII. DEFENDANT’S MOTION TO COMPEL ARBITRATION

Defendant moves for an order compelling arbitration, dismissing class claims, and staying proceedings pursuant to the arbitration agreement.

A.

Legal Standard

In ruling on a motion to compel arbitration, the Court must inquire as to (1) whether there is a valid agreement to arbitrate, and (2) if so, whether the scope of the agreement covers the claims alleged. (See Howsan v. Dean Witter Reynolds (2002) 537 U.S. 79, 84.) “Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate. [Citations.] The threshold question requires a response because if such an agreement exists, then the court is statutorily required to order the matter to arbitration.” (Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13, 19, internal quotation marks omitted.) The agreements at issue expressly provide that they are governed by the Federal Arbitration Act.

“The FAA [Federal Arbitration Act], which includes both procedural and substantive provisions, governs [arbitration] agreements involving interstate commerce.” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840.) However, “[t]he procedural aspects of the FAA do not apply in state court absent an express provision in the arbitration agreement.” (Ibid.) Where the Agreement expressly provides that it “shall be interpreted and enforced in accordance with the [FAA],” federal procedural and substantive law apply. (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122 [“[t]he phrase ‘pursuant to the FAA’ is broad and unconditional,” and unambiguously adopts both the procedural and substantive aspects of the FAA].)

Under the FAA, the Court must grant a motion to compel arbitration if any suit is brought upon “any issue referable to arbitration under an agreement for such arbitration” (9 U.S.C. § 3), subject to “such grounds as exist at law or in equity for the revocation of any contract...” (9 U.S.C. § 2). 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. (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396 [under both federal and state law, “the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate”]; Rosenthal v.

Great Western Fin’l Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal) [moving party’s burden is a preponderance of evidence].) The burden then shifts to the resisting party to prove a ground for denial. (Rosenthal, supra, 14 Cal.4th at p. 413.)

“In determining the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) But the FAA’s policy favoring arbitration ... is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.

Or in another formulation: The policy is to make arbitration agreements as enforceable as other contracts, but not more so. Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. (Morgan v. Sundance, Inc. (2022) 596 U.S. 411 (Morgan), internal citations and quotation marks omitted.)

On a motion to compel arbitration under the CAA, “[t]he party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle, supra, 55 Cal.4th at p. 236.)

B.

Discussion

As one Court of Appeal summarized, [T]he moving party bears the burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Rosenthal, supra, 14 Cal.4th at p. 413.) 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.” (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543–544 [279 Cal. Rptr. 3d 112] (Bannister).) Alternatively, the moving party can meet its burden by setting forth the agreement’s provisions in the motion. (Condee v.

Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [105 Cal. Rptr. 2d 597] (Condee); see also Cal. Rules of Court, rule 3.1330 [“The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.”].) For this step, “it is not necessary to follow the normal procedures of document authentication.” (Condee, at p. 218.) 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. (Gamboa v.

Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165–166.)

1. Existence of an Agreement

Defendant provides the declaration of Ana Luz Ramos, the Human Resources Supervisor for Defendant. (Declaration of Ana Luz Ramos (“Ramos Decl.”), ¶ 1.) She states that Plaintiff has worked for Defendant as an hourly, non-exempt packaging employee since March 2019. (Ramos Decl., ¶ 3.) At the time of her hiring, Plaintiff did not execute an arbitration agreement as a term and condition of her employment. (Ramos Decl., ¶ 4.) In March 2021, Plaintiff was presented with the arbitration agreement (the “Agreement”) as part of a company-wide audit regarding which employees had not received a copy at that time. (Ramos Decl., ¶ 5.)

The former Human Resources Manager presented the Agreement to Plaintiff but he is no longer employed with Defendant. (Ramos Decl., ¶¶ 5-6.) Thus, Ramos states she is qualified to testify to Defendants practices and protocols surrounding Human Resources because although she was not in her current position in 2021, she has worked for Defendant since 2017 and she worked in the Payroll Department, which works in tandem with the Human Resources Department. (Ramos Decl., ¶¶ 2, 5-6.) Ramos is familiar with the facts and circumstances of the 2021 audit. (Ramos Decl., ¶ 6.)

She states that when employees were presented with the Agreement in March 2021, they were given time to review it and ask questions prior to signing. (Ibid.) She further recalls that since the majority of Defendant’s workforce communicates primarily in Spanish, the Agreements were presented as standalone agreements in Spanish to those employees including Plaintiff. (Ramos Decl., ¶¶ 6-7.) Defendant did not require employees to sign the Agreement in order to continue their employment. (Ramos Decl., ¶ 8.)

Ramos states that Plaintiff did not ask any questions or voice any concerns to anyone else in Human Resources prior to signing the Agreement on March 23, 2021. (Ramos Decl., ¶¶ 9-10.)

The Agreement provides,

Employee and Employer agree to resolution by arbitration of all claims or controversies arising out of Employee’s employment or its termination (“Claims”) that either may have against the other, or any of their officers, directors, shareholders, members, representatives, attorneys, agents, or assigns in their capacity as such or otherwise, except that any claims Employee may have for workers’ compensation, state unemployment compensation, state disability insurance, or as an individual or representative in a proceeding under the California Private Attorneys General Act (“PAGA”) are not covered by this Agreement, nor is any claim relating to employee benefit or retirement plans where such plan has an existing arbitration agreement.

Any Claims shall be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, except for a proceeding under PAGA (Ramos Decl., Exh. A, § 1.)

Defendant establishes the existence of an agreement to arbitrate between the parties. Defendant maintains that the Agreement expressly covers Plaintiff’s claims. Therefore, Defendant meet its initial burden by submitting prima facie evidence of a written agreement to arbitrate the claims asserted in the action. (See Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).)

Once the party seeking arbitration meets it burden of proving the existence of an arbitration agreement, “the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle, supra, 55 Cal.4th at p. 236.) Here, Plaintiff disputes ever signing the Agreement. (Plaintiff’s Opposition (“Opp.”), p. 9:10-11.) Plaintiff provides a declaration in which she states that her primary language is Spanish, but she has some limited fluency in English. (Plaintiff’s Declaration (“Decl.”), ¶ 4.)

She states she does not recognize the Agreement nor does she recall signing any such agreement and consequently, she disputes entering into any such agreement, particularly because she was never provided with any explanation of the documents she signed. (Plaintiff’s Decl., ¶ 7.) She further states that she disputes that she ever signed the Agreement attached to Ramos’ declaration. (Ibid.) She also states that the signature in the employee handbook is different than the signature for the Agreement. (Ibid.)

“Generally, a party may not avoid enforcement of an arbitration provision because the party has limited proficiency in the English language. If a party does not speak or understand English sufficiently to comprehend a contract in English, it is incumbent upon the party to have it read or explained to him or her.” (Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 518-519 (Caballero).) “An exception to the general rule applies when a party was fraudulently induced to sign the contract.” (Id. at p. 519.)

However, this exception is inapplicable in this case because Plaintiff does not argue that Defendant affirmatively prevented her from learning about the Agreements terms. Rather she contends she was not presented with the Agreement at all. (See id. [exception inapplicable because plaintiff did not contend that defendant “defrauded him or prevented him from learning the contract’s terms. He simply states that, to the best of his recollection, he was not presented with an Arbitration Agreement in Spanish or an Arbitration Agreement in English that was explained to him.”].)

Next, Plaintiff disputes signing the Agreeement. Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747 (Iyere) disagreed with Gamboa, supra, when it comes to handwritten signatures, reasoning that, unlike with electronic signatures, “[i]f a party confronted with his or her handwritten signature on an arbitration agreement is unable to allege that the signature is inauthentic or forged, the fact that that person does not recall signing the agreement neither creates a factual dispute as to the signature’s authenticity nor affords an independent basis to find that a contract was not formed.” (Id. at p. 758.)

Plaintiff’s declaration focuses on “onboarding documents” (see Plaintiff’s Decl., ¶¶ 5-6), however, as noted above, the Agreement was not part of the onboarding documents. Nevertheless, Plaintiff contends the signature on the Agreement is not authentic. Thus, Plaintiff meets her burden to challenge the authenticity of the Agreement. Consequently, the burden shifts back to Defendant. (See Gamboa, supra, 72 Cal.App.5th at p. 166.)

In reply, Defendant provides another declaration from Ramos, in which she states she maintains as a business record employee personnel files, including Plaintiff’s. (Ramos Declaration in Support of Reply (“Ramos Supp. Decl.”), ¶ 3.) Ramos provides additional documents signed by Plaintiff including her offer letter, employee access card, emergency contact information, and meal period waiver agreement. (Ibid.) “It is true, of course, that the general rule of motion practice ... is that new evidence is not permitted with reply papers.” (Golden Door Properties, LLC v.

Superior Court (2020) 53 Cal.App.5th 733, 774.) “However, a recognized exception is for points 'strictly responsive' to arguments made for the first time in the opposition.” (Ibid.) Here, the documents are submitted in response to Plaintiff’s shifting the burden back to Defendant. The signatures on the Agreement and the employee acknowledgment and agreement, which are attached to Ramos’s initial declaration are similar and they match the signatures on the documents provided by Ramons in support of the Reply. (See Ramos Decl., Exhs.

A & B.) These signatures are different from Plaintiff’s signature on her declaration in support of her opposition, however, the Court notes this looks to be an electronic signature as opposed wet signatures on the other documents. (Ramos Supp. Decl., Exh. A.) Based on the foregoing, Defendant provides admissible evidence to establish that a valid agreement exists between the parties. (See Gamboa, supra, 72 Cal.App.5th at pp. 165– 166.)

Next, Plaintiff the FAA does not apply to her as she falls within the transportation worker exemption. (Opp., 10:1-2.)

2. FAA and Interstate Commerce

The basic coverage provision of the FAA “makes the law applicable to contracts evidencing a transaction ‘involving commerce’ (9 U.S.C. § 2), which language reflects that Congress intended the law’s coverage to extend to the full reach of its commerce clause power.” (Nieto v. Fresno Beverage Co. (2019) 33 Cal.App.5th 274, 279 [internal citations omitted] (Nieto).) However, Section 1 of the FAA “provides a limited exemption from the law’s coverage 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.).” (Ibid [internal citations omitted].) Any other class of workers engaged in foreign or interstate commerce “has been defined to mean transportation workers.” (Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1240.)

In Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450 (Saxon), the court held that held that the exemption applied to a ramp supervisor employed by Southwest Airlines who frequently loaded and unloaded cargo on and off airplanes that travelled in interstate commerce belonged to a class of workers engaged in foreign or interstate commerce. (Id. at p. 450.) The court explained that the analysis requires consideration of: (1) whether the workers are actively engaged in transportation of goods in interstate commerce; and (2) whether the class of workers play a direct and necessary role in the free flow of goods across borders. (Id. at p. 451 [emphasis added].)

The court also explained that the determinative issue is not whether the employer’s industry involves interstate commerce, but whether the class of workers to which the plaintiff belongs is engaged in interstate commerce. (Id. at p. 455 [emphasis added].)

In Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, the plaintiff worked at a warehouse in California that was operated by the defendant. (Id. at p. 1157.) That location received goods from international locations including Asia, South America, and Central America. (Ibid.) The goods remained at the warehouse from time periods ranging from multiple days to several weeks until they were shipped to consumers and retailers for end-use. (Ibid.) The plaintiff did not directly transport the goods from or to the defendant’s warehouse nor was the plaintiff responsible for loading and unloading the goods. (Id. at pp. 1157-1158.)

However, the Ninth Circuit affirmed the district court’s ruling and concluded that the plaintiff was directly involved in tasks aiding the transport of the goods. It explained that the plaintiff transported the goods from one section of the warehouse to the “picking station” of the warehouse; he assisted the “Pickers” in gathering the packages so that they could be shipped out; and he assisted the “Outflow Department” in preparing packages to leave the warehouse. (Id. at p. 1158.)

Plaintiff argues she is of the class of workers that engage in foreign and interstate commerce. (Opp., p. 10:13-14.) As a warehouse salmon packer, Plaintiff was responsible for: (1) packaging and selling salmon; (2) placing the sealed salmon into the boxes for shipment; and (3) loading the salmon boxes into pallets and trucks for shipment. (Opp., p. 10:15-20; Plaintiff’s Decl., ¶ 3.) Defendant would import raw salmon from Chile, Canada, and Norway. (Plaintiff’s Decl., ¶ 3.) Once the salmon was packaged, it was shipped to various supermarkets and warehouse distributors throughout the United States. (Ibid.)

In reply, Defendant submits the declaration of Tony Silva, a Plant Manager for Defendant. (See Silva Decl., ¶ 1.) He states that Defendant’s general product distribution process is as follows: Defendant receives seafood from distributors and at the time, it is not continuing in any line of shipment until a client places an order for a particular product. (Silva Decl., ¶ 4.) Once the seafood is received by Defendant, it is inspected for temperature, quality, quantity, and weight, and if it passes inspection, it is placed in a cooling area and stored until a client order is received. (Ibid.)

Once a client order is received, a ticket is generated, and an order picker will retrieve the applicable product and place it into a box for review. (Ibid.) Then a quality control employee will inspect the box and verify the product for shipment. (Ibid.) After the quality control process is completed, different workers generate the shipping labels and prepare shipping boxes, and place the approved products in shipping boxes, which are then loaded by specified workers onto shipping vehicles. (Ibid.)

Silva states that none of Plaintiff’s roles required her to load boxes of fish or other items onto trucks for shipment, prepare shipping labels, prepare boxes for shipping, or have any relation to the shipping or transportation of product orders. (Silva Decl., ¶ 11.) As the goods came to a stop once they arrived at the warehouse and a client order was required before the goods were packaged, it does not appear that Plaintiff activities constituted participation in the transportation of the goods across borders.

Therefore, the Court cannot conclude that Plaintiff falls within the transportation worker exemption. Thus, the FAA applies.

3. Unconscionability

Plaintiff argues the Agreement is procedurally and substantively unconscionable. (Opp., p. 12:6-7.) “The general principles of unconscionability are well established. A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party.” (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 125, [internal citation omitted] (OTO).) Unconscionability has both procedural and substantive elements. (Armendariz v.

Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz); Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1539 (Jones).) Both must appear for a court to invalidate a contract or one of its individual terms (Armendariz, supra, 24 Cal.4th at p. 114; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174), but they need not be present in the same degree: “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114.) “A contract’s substantive fairness must be considered in light of any procedural unconscionability in its making.” (Ibid., [internal quotations and citation omitted].) “The burden of proving unconscionability rests upon the party asserting it.” (OTO, supra, 8 Cal.5th at 126.)

i. Procedural Unconscionability

Procedural unconscionability focuses on the elements of oppression and surprise. (Armendariz, supra, 24 Cal.4th at p. 114.) “Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice,” while “[s]urprise involves the extent to which the terms of the bargain are hidden in a prolix printed form drafted by a party is a superior bargaining position.” (Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 671, [internal citation and quotation marks omitted].)

Analyzing procedural unconscionability “begins with an inquiry into whether the contract is one of adhesion” (Armendariz, 24 Cal.4th at 113) i.e., one that is “standardized, generally on a preprinted form, and offered by the party with superior bargaining power ‘on a take-it-or-leave-it basis.’” (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 126 (OTO).) Arbitration agreements imposed as a condition of employment are typically deemed to be adhesive and the determinative inquiry in such a circumstance is “whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required.” (Id.) “Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.” (Pinnacle, supra, 55 Cal.4th at p. 247.)

Circumstances relevant to establishing oppression include: the amount of time the party is given to consider the agreement; the amount and type of pressure exerted on them to sign; the length of the proposed contract and the length and complexity of the challenged provision; the education and experience of the party; and whether the party’s review of the agreement was aided by an attorney. (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348.) In pre-hiring settings, such as the one at bar, courts must be “particularly attuned” to the danger of oppression and overreaching. (Armendariz, supra, at 115.)

Plaintiff argues the Agreement is procedurally unconscionable because she was hired as a warehouse salmon packer, she had limited financial resources when she applied, and she has no recollection of receiving the Agreement or being able to negotiate. (Opp., p. 13:2-5.) However, here, Defendant provides evidence to establish that Plaintiff was not required to sign the Agreement as a term of her employment in 2019 nor was she required to sign the Agreement in 2021 in order to continue working. (See Ramos Decl., ¶¶ 4, 8.)

Next, Plaintiff argues the Agreement involves unfair surprise because it was never presented to her not was she presented with the opportunity to review it. (Opp., p. 14:22-25.) Unfair surprise occurs when “the allegedly unconscionable provision is hidden with a prolix printed form.” (OTO, supra 8 Cal.5th at p. 126.) Here, Plaintiff’s position is that she was never given the Agreement at all, thus, she cannot rely on unfair surprise to establish procedural unconscionability. Based on the foregoing, Plaintiff fails to establish the Agreement is procedurally unconscionable.

Both procedural and substantive unconscionability are required in order for a court to invalidate a contract or any of its provisions. (See Armendariz, supra, 24 Cal.4th at p. 114; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174.) Consequently, the Court does not need to address substantive unconscionability because even if she establishes substantive unconscionability, she would still not be able to meet her burden.

Accordingly, Defendant’s motion to compel arbitration is GRANTED.

XIX. REQUEST TO STAY

Code Civ. Proc., § 1281.4, provides, “If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . .” (Code Civ. Proc., § 1281.4.)

As the Court has granted the motion to compel arbitration, it finds a stay of the remainder of this action is appropriate. Thus, this action is stayed pending the outcome of arbitration.

XX. CONCLUSION

Defendant’s motion to compel arbitration is GRANTED. The matter is STAYED pending the outcome of arbitration. The Court will prepare the order.

- oo0oo -

Case Name: Case No.:

- oo0oo -

9