Defendant’s Motion to Compel Arbitration; Joinders
The Court agrees, however, that the subpoena is otherwise overbroad as drafted. There appears to be no reason why essentially every document related to H.G.’s employment, from her job application to her complete personnel file, is particularly relevant.
Accordingly, the subpoena is modified to provide for the production of wage, payroll, and hours records; forms W-2, W-9, and 1099 (with social security numbers redacted); and records relating to claims of H.G.’s accidents or injuries in the Center’s files.
IV. Fees and Costs
In reply, Plaintiffs abandon their initial request for fees and costs incurred in bringing this motion. The request is therefore denied.
9 Dang vs. Allegis Group, Inc.
2017-00903358
Defendant’s Motion to Strike Portions of Complaint
Continued to 03/19/2027 at 9:00 a.m. per stipulation of the parties.
10 Pelayo vs. Andek Staffing Services, Inc.
2025-01524878
Defendant’s Motion to Compel Arbitration Defendant’s Vensure HR, Inc.’s Joinder Defendant’s Westamerica Communication, Inc.’s Joinder
Before the Court are Defendants AnDek Staffing Services, Inc. and AnDek After Venture’s (collectively, “AnDek”) motion to compel arbitration (ROA 32), Defendant Westamerica Communications, Inc.’s joinder in AnDek’s motion (ROA 37), and Defendant Vensure HR, Inc.’s joinder in AnDek’s motion (ROA 42). AnDek’s motion, and the two joinders, are DENIED.
GROUNDS FOR RULING
I. Standard of Review
The moving party bears the burden of proving the existence of an arbitration agreement by the preponderance of the evidence. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164.) But the burden of production shifts in a three-step
process. (Id., at p. 165.) “First, the moving party bears the burden of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’ [Citation.] 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.’” (Ibid.)
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“If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. [Citation.] The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Ibid.)
“If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party.” (Id., at pp. 165-166.)
II.
Discussion
AnDek meets its step one burden. It contends Plaintiff Norma Pelayo electronically signed a Spanish-language arbitration agreement attached to the declaration of Robert X. Ramos (ROA 30) as Exhibit A. (A certified English translation is attached to the declaration of Priya Patel in support of Vensure’s joinder (ROA 50).) The agreement is purportedly signed by Plaintiff and by Marilyn Zendejas on behalf of AnDek.
Plaintiff meets her shifted burden at step two. She testifies she is “certain that [she] did not sign any Arbitration Agreement.” (Pelayo Decl. (ROA 54) ¶ 6. The burden shifts back to AnDek to prove the existence of an agreement by preponderance of the evidence.
AnDek fails to meet its shifted burden. It offers the testimony of Robert X. Ramos, its Director of Client Services. Ramos testifies that AnDek uses onboarding software called AviontØ for new hires. He further testifies to how AviontØ operates, including measures AviontØ takes to ensure that the new employee, and not someone else, is filling out onboarding paperwork. He testifies that Plaintiff followed these procedures, meaning the
electronic signature on the arbitration agreement is hers. (See generally Ramos Decl.)
But as Plaintiff points out in opposition, Ramos fails to lay foundation for his knowledge of how the AviontØ system functions. He declares, “The statements made in this declaration are on the basis of my own personal knowledge, and I could and would competently testify thereto if called upon to do,” but he goes no further. (Ramos Decl. ¶ 2.) He doesn’t explain, for example, how and why he knows how the AviontØ system functions. He doesn’t even explain the duties of the Director of Client Services.
Gamboa is instructive. There, the employer’s human resources director testified the plaintiff signed the arbitration agreement, but she didn’t explain how she knew plaintiff signed it. “Lopez did not provide the requisite preliminary facts to show she had knowledge about what she said in [the declaration]. [Citation.] Lopez’s boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,’ is not sufficient to establish personal knowledge.” (Gamboa, supra, 72 Cal.App.5th at p. 169.) As a result, the employer couldn’t meet its burden of proving the plaintiff signed the agreement.
In the cases cited by AnDek, the employer authenticated an electronically signed agreement with testimony from someone who had foundation to explain how the system functioned. For example, in Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, the employer offered the testimony of a “systems consultant” whose duties included “maintaining and troubleshooting the online system for SCPMG physician employment contracts.” (Id., at p. 1051 & fn. 1.) Similarly, in Beckman v. Zuffa LLC (N.D.Cal. 2021) 2021 WL 5445464, the employer’s declarant established “familiarity with Defendants’ systems and outline of the process of electronic signature.” (Id., at *3.)
In reply, AnDek dismisses Plaintiff’s argument: “Just because Plaintiff’s counsel does not like the particular language used in Ramos’ Declaration, its [sic] not a valid reason to, and does not in any way, discount Mr. Ramos’ testimony regarding how ANDEK obtained plaintiffs electronic signature.” (Reply (ROA 66) at p. 2.) But Gamboa holds boilerplate statements like Ramos’s are insufficient to lay foundation. AnDek’s quarrel isn’t with Plaintiff, but with the law as set forth by the Court of Appeal. Without an explanation of the basis for Ramos’ claimed personal knowledge of how the AviontØ system functions, his testimony lacks foundation.
The Court recognizes that AnDek might wish to offer a supplemental declaration filling this gap. The Court will not permit such a filing. The problem with Ramos’s testimony was specifically identified in Plaintiff’s opposition. Rather than filing a supplemental declaration with the reply papers, AnDek simply dismissed Plaintiff’s argument out of hand.
Along the same lines, AnDek apologizes in its Reply for mistakenly failing to attach an English translation of the arbitration agreement. This apology is in response to Plaintiff raising this issue in her Opposition to the motion. But AnDek does not address perhaps a more significant omission. In his declaration in support of the motion, Ramos cites Exhibit D which supposedly is a copy of “AnDek’s audit report tracking the digital footprint of the electronic consent form.” (Ramos Decl. ¶ 10) Even though Plaintiff notes in her Opposition that there is no Exhibit D attached to the declaration, Defendant ignores this omission, arguing instead that “exhibits A, B and C provide incontrovertible evidence that the ‘signature was the employee’s act.’” While this audit report likely would not have solved the foundation issue discussed above, Defendant’s failure to supply the report is further reason why the Court does not intend to allow further briefing.
For these reasons, AnDek has failed to prove by a preponderance of the evidence that an agreement to arbitrate exists.
In a footnote, AnDek offers an alternative argument: because Plaintiff continued to work after being informed that an arbitration agreement was a term of employment, she impliedly accepted the agreement. AnDek has forfeited this argument by relegating it to a footnote. (See Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555 (“by relegating an issue to argument in a footnote . . . [t]he County has forfeited this argument”).)
But more to the point, even if the argument weren’t forfeited, it fails for much the same reasons discussed above. An employee’s acceptance of an arbitration agreement may be “implied in fact where . . . the employee’s continued employment constitutes her acceptance of an agreement proposed by her employer.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420.) This requires the employer to show the employee received the proposed agreement. (See id. at p. 422 (substantial evidence showed employee received arbitration agreement and continued to work).) Here, the only evidence Plaintiff received the arbitration agreement is Ramos’s testimony that it was delivered to her through AviontØ. Again, Ramos has not laid foundation to testify
that he knows how AviontØ functions.
AnDek’s motion to compel arbitration is denied. Because Westamerica’s and Vensure’s joinders depend on AnDek proving the existence of an agreement to arbitrate, the joinders are denied as well.
11 Able Services Wage and Hour Cases
JCCP 5231 Motion for Attorney Fees Plaintiff’s Motion for Final Approval Plaintiff’s Motion for Final Approval Plaintiff’s Motion to Seal
MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
The motion for final approval of class action settlement is GRANTED. The Court awards the following distributions:
1. Attorney’s fees in the amount of $2,083,333, or 1/3 of the GSA. The Court finds this amount to be a reasonable result in light of the quality of the result obtained, the work performed by class counsel, a review of the billing records provided, and the estimated lodestar. In particular, the Court notes that the Pyle and Feinberg firms have worked on a contingency in this matter since 2015. The Court further notes these firms’ successful work on appeal, which resulted in a published decision regarding PAGA’s administrative exhaustion requirements. In approving this amount and examining the billing records provided, the Court is not approving any particular hourly billing rates proposed by class counsel.
2. Litigation costs in the amount of $250,505, the full amount sought.
3. Administration costs in the amount of $98,479, per the administrator’s declaration.
4. Enhancement payments of $20,000 to Garibay and $10,000 apiece to Tellez and Uribe. In making these awards, the Court has considered only the factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785.