Menjivar v. Field Fresh Foods CA2/3

Filed 3/28/23 Menjivar v. Field Fresh Foods CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
ERICK RIVERA MENJIVAR, B321444
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV23204)
v.
FIELD FRESH FOODS
INCORPORATED,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Reversed and
remanded for further proceedings.
McDermott Will & Emery, Maria C. Rodriguez, Marjorie C.
Soto, and Ashley N. Attia for Defendant and Appellant.
Proxy Law Firm, Rana Nader and Hengameh Safaei for
Plaintiff and Respondent.
_________________________
Defendant Field Fresh Foods Incorporated (Field Fresh)
appeals from the trial court’s order denying its motion to compel
arbitration of sexual harassment claims brought by plaintiff
Erick Rivera Menjivar. We reverse and remand for further
proceedings in light of a change in applicable law that took place
after the trial court issued its decision.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2020, Field Fresh hired Menjivar, a
monolingual Spanish speaker who was then 21 years old, to clean
and sanitize the company’s equipment at its Gardena
warehouse.1 In April 2021, Menjivar quit his job and two months
later, filed a lawsuit against Field Fresh and his former
supervisor, raising several claims under California’s Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900 et
seq.) and other related provisions.
Menjivar’s complaint alleged that during his employment
with Field Fresh, Menjivar was subject to sexual harassment by
his supervisor, and, despite reporting it to management, the
harassment continued until it escalated into sexual assault and
battery. The complaint alleged that Menjivar resigned from his
employment with Field Fresh because he could no longer endure
the harassment.
1 For completeness, we note that Menjivar’s complaint
alleges that Field Fresh hired him in January 2019. For
purposes of this appeal, the parties do not dispute that Menjivar
started his employment with Field Fresh in January 2020.
2
In August 2021, Field Fresh moved to compel arbitration.
Attached to the motion was a declaration by Marco Prudente,
Field Fresh’s “Safety Coordinator,” who attested to several facts
based upon his “own personal knowledge, or knowledge based
upon [his] review of company records.” Prudente averred that on
Menjivar’s first day of work, Menjivar “reviewed and signed” a
four-page Spanish-language agreement to arbitrate (the
agreement), a copy of which was attached to Prudente’s
declaration and appeared to bear the initials “E.R.” on each page
and a signature on the last page.2
Menjivar filed an opposition to Field Fresh’s motion to
compel in January 2022. In a declaration, Menjivar attested to
the following facts: On his first day of work, Menjivar reported to
the office of Field Fresh’s human resources manager, whose name
was “Maria” (last name unknown). One of Maria’s assistants
gave Menjivar a stack of documents and informed him that he
was required to complete and sign all of the “paperwork” before
he could begin employment with Field Fresh. He was given less
than 30 minutes to complete and sign all of the documents, and
had no opportunity to ask any questions. Menjivar did not know
that the paperwork Field Fresh required him to sign “included a
waiver of [his] right to file a case in court.” Menjivar reviewed a
copy of the agreement “[i]n connection with this case” and
acknowledged that the copy “contains [his] signature.” Menjivar
also filed evidentiary objections to the portion of Prudente’s
declaration that stated Menjivar “reviewed and signed a physical
2 An unsigned English translation of the agreement was also
attached to the Prudente declaration.
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copy of Field Fresh’s Arbitration Agreement” as lacking
foundation.
In February 2022, the trial court issued a tentative order
sustaining Menjivar’s evidentiary objection on the ground that
Field Fresh had failed to authenticate the document that it
alleged was a valid arbitration agreement between the parties.
The court indicated that it would continue the hearing on the
motion to compel to give Field Fresh an opportunity to
sufficiently authenticate the document. The court went on to
analyze the merits of Field Fresh’s motion to compel, and
tentatively granted the motion with the caveat that Field Fresh
would first need to sufficiently authenticate the document that
purported to be the underlying arbitration agreement. The court
set a briefing schedule on the issue of authentication only and
continued the hearing on the motion to compel.
In March 2022, Field Fresh filed a supplemental
declaration from Prudente, in which he averred: “In my position
[as Safety Coordinator], I am familiar with Field Fresh’s
employment forms and policies and I have access to all current
and prior employee personnel files containing these forms and
policies.” Prudente further stated that “[i]t is Field Fresh’s policy
to enter into binding arbitration agreements with its employees,
and pursuant to this policy, employees sign binding arbitration
agreements with Field Fresh when hired. Once signed, the
agreement is placed in the employee’s personnel file where it
becomes a permanent part of the employee’s employment record.”
According to Prudente, he had “access to and ha[d] reviewed”
Menjivar’s personnel file, the file was maintained in Field Fresh’s
“normal course of its business,” and the previously produced
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Spanish-language arbitration agreement “was recovered” from
Menjivar’s file.
Later that month, Menjivar filed a supplemental
declaration averring that he did not recall seeing or signing the
agreement, other than in connection with reviewing the
document for the purposes of this case. Menjivar also objected to
Prudente’s statement that Menjivar “signed the Agreement” for a
lack of foundation, and to his statement that the attached copy of
the agreement was a “true and correct copy” for lack of
foundation and authentication. According to Menjivar, because
Prudente did not state he was a duly authorized custodian of
records or other qualified witness with authority to certify the
agreement, the agreement was inadmissible.
In April 2022, after hearing argument from the parties, the
trial court denied Field Fresh’s motion to compel in a written
decision. The court held that Field Fresh failed to meet its
burden of authenticating the agreement because the
supplemental declaration by Prudente only established that the
agreement came from Menjivar’s file, but did not address the
circumstances of its execution. In other words, Field Fresh did
not provide evidence of a factual scenario, based on a declarant’s
personal knowledge, where Menjivar “would necessarily have
been presented a copy of the arbitration agreement as a condition
of employment, and that it would have been placed in Plaintiff’s
file after being signed.”
Field Fresh timely appealed from the April 2022 order.
After the parties filed their briefs on the merits, we invited them
to file supplemental briefing to address the decision in Iyere v.
Wise Auto Group (2023) 87 Cal.App.5th 747 (Iyere), which was
issued while the matter was pending appeal.
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DISCUSSION
A. Applicable law and standard of review
California and federal law favor arbitration. (St. Agnes
Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187,
1195.) That policy does not apply, however, where the parties
have not agreed to arbitrate their dispute. (Espejo v. Southern
California Permanente Medical Group (2016) 246 Cal.App.4th
1047, 1054.)
Before granting a motion to compel arbitration, a trial court
must first “determine[ ] that an agreement to arbitrate the
controversy exists.” (Code Civ. Proc., § 1281.2.) The court makes
this determination in a summary proceeding (Code Civ. Proc.,
§ 1290.2), sitting “as a trier of fact, weighing all the affidavits,
declarations, and other documentary evidence, as well as oral
testimony received at the court’s discretion, to reach a final
determination.” (Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 972.) The party seeking to compel
arbitration carries the burden of persuasion to show, by a
preponderance of the evidence, that the parties agreed to
arbitrate their dispute. (Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 413.)
The summary procedure under Code of Civil Procedure,
section 1290.2 involves a three-step burden shifting framework.
(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th
158, 165 (Gamboa).) In the first step, the party moving to compel
arbitration carries the initial burden to present prima facie
evidence of an arbitration agreement. (Ibid.) The moving party
can attach to its motion 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.)
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Or the moving party can set forth verbatim in its motion the
agreement’s provisions. (Gamboa, at p. 165; 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.”].) At this initial step, “it
is not necessary to follow the normal procedures of document
authentication.” (Condee v. Longwood Management Corp. (2001)
88 Cal.App.4th 215, 218.) If the moving party establishes the
existence of an arbitration agreement, and the nonmoving party
does not challenge the agreement’s validity or otherwise establish
an exception to arbitration, the court must order the parties to
arbitrate their dispute. (Id. at pp. 218–219.)
If, on the other hand, the nonmoving party does challenge
the existence of a valid arbitration agreement between the
parties, then the second step is triggered. In this second step,
“the opposing party bears the burden of producing evidence to
challenge the authenticity of the agreement.” (Gamboa, supra,
72 Cal.App.5th at p. 165; see also Iyere, supra, 87 Cal.App.5th at
p. 755 [“If the movant bears its initial burden, the burden shifts
to the party opposing arbitration to identify a factual dispute as
to the agreement’s existence—in this instance, by disputing the
authenticity of their signatures”].) At this second step, the
“opponent need not prove that his or her purported signature is
not authentic, but must submit sufficient evidence to create a
factual dispute and shift the burden back to the arbitration
proponent . . . .” (Iyere, at p. 755.)
If the party opposing arbitration meets its burden of
producing evidence to challenge the authenticity of the
agreement, then in the third step, the burden of proof shifts back
to the moving party to “establish with admissible evidence a valid
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arbitration agreement between the parties.” (Gamboa, supra, 72
Cal.App.5th at p. 165.) “The burden of proving the agreement by
a preponderance of the evidence remains with the moving party.”
(Id. at pp. 165–166.) In this third step, the moving party may
submit reply evidence establishing the agreement’s validity. (See
Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 794 [court
properly admitted moving party’s evidence submitted on reply
because nonmoving party placed the arbitration agreement’s
validity at issue in his opposition papers].)
Generally, we review a court’s order denying a motion to
compel arbitration for abuse of discretion, unless the appeal
raises only a pure question of law, which we review de novo.
(Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399,
1406.)
B. Menjivar did not meet his burden of
challenging the authenticity of the agreement
at step two of the burden shifting framework
As we discussed in the section summarizing the
proceedings below, the parties appeared to have focused
exclusively on whether Field Fresh carried its burden of
establishing with admissible evidence the existence of a valid
arbitration agreement at step three of the burden shifting
framework. The court found that Field Fresh failed to carry its
burden at this step and thus, denied the motion to compel.
Implicit in the court’s ruling that Field Fresh failed to carry
its burden at step three is the necessary finding that Menjivar
carried his burden at step two to challenge the authenticity of the
arbitration agreement. There are two cases that squarely
address whether Menjivar sufficiently met his burden at step
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two: Gamboa, supra, 72 Cal.App.5th 158, and Iyere, supra, 87
Cal.App.5th 747.
Gamboa involved an arbitration agreement with a
handwritten signature. The party opposing arbitration proffered
a declaration stating under penalty of perjury that “she did not
recall the agreement and would not have signed it if she had been
aware of it.” (Gamboa, supra, 72 Cal.App.5th at p. 167.) The
appellate court held that this evidence was sufficient to satisfy
the party’s burden at step two to create a factual dispute as to the
authenticity of the agreement. (Id. at p. 168.)
Iyere, which was decided after the trial court issued its
decision and while this matter was pending on appeal, also
involved an arbitration agreement with a handwritten signature.
The party opposing arbitration in Iyere similarly proffered a
declaration stating that he did not remember signing the
agreement and would not have done so had he understood he was
agreeing to arbitration. (Iyere, supra, 87 Cal.App.5th at p. 753.)
In reversing the trial court’s order denying the motion to compel,
the appellate court expressly disagreed with Gamboa and held
that in the context of an arbitration agreement bearing a
handwritten signature, merely testifying or declaring under oath
that a party does not remember signing an arbitration agreement
does not create a factual dispute as to the authenticity of the
agreement at the second step of the burden shifting process. (See
Iyere, at p. 758 [“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”].)
We agree with Iyere insofar as the decision holds that a
party who is challenging an agreement appearing to bear their
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handwritten signature must present more evidence than simply
testifying or declaring under penalty of perjury that they do not
remember signing the agreement to create a factual dispute
regarding the authenticity of the agreement. For instance, the
party could testify or state under penalty of perjury that the
proffered signature does not resemble their actual handwritten
signature, or that they did not sign the agreement, or, as
suggested by Iyere, that the signature is “inauthentic or forged.”3
(Iyere, supra, 87 Cal.App.5th at p. 758.)
Here, the arbitration agreement proffered by Field Fresh
bears the initials “E.R.” on the bottom of the first three pages,
and a signature purporting to be Menjivar’s on the last page.
Furthermore, in his initial declaration in opposition to Field
Fresh’s motion to compel, Menjivar stated that he reviewed a
copy of the agreement and acknowledged that the copy “contains
[his] signature.” Under these circumstances, evidence that
Menjivar did not remember signing this agreement is insufficient
to create a factual dispute as to the authenticity of the agreement
at step two and thus, Menjivar failed to carry his burden at step
two. Because we conclude that the trial court applied an
3 While we certainly recognize, as Menjivar points out in his
supplemental briefing, that an image of a person’s signature can
be copied from one document and added to another document
through widely available technology, a person faced with an
agreement bearing an image of their signature could still
challenge the authenticity of the document by, for example,
testifying or stating under penalty of perjury that while the
signature may look like their handwritten signature, they did not
place the image of the signature on that document, or that they
did not sign that document.
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incorrect legal standard at the second step of the framework, we
need not reach the issue of whether the trial court’s
determination that Field Fresh failed to carry its burden at step
three was erroneous. (See, e.g., Engalla v. Permanente Medical
Group, Inc., supra, 15 Cal.4th at pp. 972–973 [application of
incorrect legal standard as to petition to compel arbitration
required remand for further proceedings, in light of prior
confusion in case law].)
Because neither the parties nor the trial court had the
benefit of the Iyere decision4, and because Iyere created a change
in this particular area of law, we remand the matter to the trial
court to conduct further proceedings consistent with this opinion
and to afford the parties an opportunity to develop the record
further.5
4 To be clear, we do not fault the trial court for its decision.
At the time of the underlying proceedings, Iyere had not been
decided, and the supplemental declaration filed by Menjivar
wherein he averred that he did not remember signing the
agreement was sufficient under Gamboa at the time to create a
factual dispute.
5 Given that we are remanding the matter for further
proceedings as to step two, if the trial court determines that
Menjivar is able to carry his burden at step two with additional
evidence, nothing in our decision precludes the trial court from
revisiting prior rulings made as to step three, or ruling on
evidentiary objections previously raised by Menjivar.
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DISPOSITION
The order denying Field Fresh Foods Incorporated’s motion
is reversed and the matter is remanded for further proceedings in
accordance with this opinion. Because our reversal is based on a
change in the law, the parties shall bear their own costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
NGUYEN (KIM), J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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