Birrueta v. UMA Enterprises CA2/2

Filed 4/28/23 Birrueta v. UMA Enterprises CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

LEONIDES BIRRUETA, B316309 Plaintiff and Respondent, (Los Angeles County v. Super. Ct. No. 20STCV35816) UMA ENTERPRISES, INC. Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Michael P. Linfield, Judge. Affirmed. CDF Labor Law, Todd R. Wulffson, Nancy N. Lubrano and Brian E. Cole II for Defendant and Appellant. Employee Justice Legal Group, Kaveh S. Elihu and Sylvia V. Panosian for Plaintiff and Respondent.

_____________________________________

Leonides Birrueta (plaintiff) sued his former employer for wrongful termination-related claims. The employer filed two motions to compel arbitration, which the trial court denied. The employer appealed from the order denying the second motion to compel arbitration. We affirm. FACTUAL AND PROCEDURAL BACKGROUND I. Facts A. Hiring, Employment and Termination UMA Enterprises, Inc. (UMA), is a nationwide wholesaler and distributor of imported goods. In April 2001, UMA hired plaintiff as a maintenance worker. Plaintiff’s sole language is Spanish. In September 2018, UMA fired plaintiff five days after he suffered a stroke while on the job and was hospitalized. At the time, plaintiff was 75 years old. He was allegedly terminated for failing to request medical leave three days before his hospitalization. B. Arbitration Agreements The arbitration agreement at issue is a four-page document written in English. The last page is signed “Leonides Birrueta” and is dated August 29, 2014. Immediately above the signature lines, the agreement reads: “BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS AGREEMENT, THAT YOU UNDERSTAND ITS TERMS, AND THAT YOU HAVE ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATION BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.”

2

II. Procedural Background A. Complaint In September 2020, plaintiff sued UMA for wrongful termination in violation of public policy, denial of sick leave, and discrimination based on the use of sick leave (Lab. Code, §§ 233, 234, 246.5), retaliation for disclosing violations of law (Lab. Code, §§ 1102.5, 1102.6), and retaliation (Lab. Code, § 98.6). Plaintiff requested a jury trial. B. First Motion to Compel Arbitration On December 15, 2020, UMA moved to compel arbitration under the arbitration agreement. Attached to the motion were the arbitration agreement and an unidentified document that apparently was the Spanish version of the agreement. UMA neither referred to nor explained the Spanish version in its motion or accompanying exhibits. Plaintiff opposed the motion. UMA and plaintiff disputed whether a valid arbitration agreement existed. Supported by the declaration of Larry Woods, its chief financial officer, UMA contended that plaintiff signed— and thereby agreed to—the agreement on August 29, 2014. Plaintiff, on the other hand, contended there was no evidence he signed the agreement and, as a Spanish speaker, understood its terms. Nor did UMA show he received and agreed to the Spanish version, which was unsigned and undated. And unlike the English version, it did not include an opt-out provision. Following full briefing, the trial court held a hearing on the motion. The court excluded Woods’s statements authenticating the arbitration agreement as lacking personal knowledge and plaintiff’s declaration in its entirety as unreliable.1