Palacios v. Nowhere Santa Monica CA2/1

Filed 4/21/22 Palacios v. Nowhere Santa Monica CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
CARIN PALACIOS, B309207
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV11880)
v.
NOWHERE SANTA MONICA,
LLC et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles
County, Rafael A. Ongkeko, Judge. Affirmed.
De Castro Law Group, José-Manuel A. de Castro and Lori V.
Minassian for Defendants and Appellants.
Pairavi Law, Edwin Pairavi and Joshua M. Mohrsaz for
Plaintiff and Respondent.
________________________
The plaintiff in this sexual harassment case (Carin Palacios)
speaks no English, only Spanish. In 2018, when she was hired by
appellant Nowhere Santa Monica, LLC, doing business as
Erewhon Market (Erewhon), she was asked to sign a document
that included an arbitration agreement but she was shown only an
English version of the agreement and had no opportunity to review
it in Spanish. When Palacios sued Erewhon (and its payroll
provider appellant Modern HR, Inc., which is included in our
references to Erewhon), Erewhon moved to compel arbitration. In
opposition, Palacios and her attorney submitted declarations
establishing that no Spanish language forms had ever been shown
to Palacios, and that the only document produced by Erewhon
during discovery was in English. The motion to compel arbitration
was denied, and Erewhon appeals from that order. We affirm.
FACTS
Palacios went to work for Erewhon in 2018. About two or
three weeks after she started, her supervisor told her she had to
sign some documents in order to receive her paycheck. Palacios
was taken to a computer, and her supervisor told her to type
certain information into the computer (her name, date of birth, and
social security number) at places indicated by the supervisor. The
document was in English and no one explained its content to
Palacios.
After this lawsuit was filed, Palacios’ attorneys asked for a
copy of Palacios’ personnel file. In response, Erewhon produced a
file that included an arbitration agreement electronically signed
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by Palacios’ supervisor, but not signed by Palacios. Erewhon did
not produce any documents in Spanish.
Erewhon moved to compel arbitration. In support of its
motion, Erewhon submitted the declaration of Michael Holmes
(Modern HR’s vice president of human resources and business
development) describing his familiarity with Modern HR’s online
onboarding system for new hires and stating that Erewhon asks
its new hires to sign “Erewhon’s Agreement to be Bound by
Alternative Dispute Resolution Policy,” which Holmes defines as
the “Arbitration Agreement.” As exhibits to his declaration are a
document Holmes describes as a copy of the English version
Arbitration Agreement and a Spanish version of the Arbitration
Agreement translated by a certified Spanish language interpreter.
The English version purports to bear Holmes’ signature and
states “‘Signed by CARIN PALACIOS at 2018-05-
14T117:09:23.531-05:00.’” It also recites, “Signed by Lopez, Isaac
at 2018:05-14T17:50:52.598-05:00.” The Spanish document does
not contain any signature, but prints Holmes’ name and title and
recites, in English, “was signed at 3:09 p.m. GMT-7 on 05/14/2018
by CARIN PALACIOS.”
Palacios opposed the motion, and submitted her own
declaration and her attorney’s declaration claiming that Palacios
had not signed any agreement and had not been given a Spanish
language version of any document. Her attorney attached an
English version of the arbitration agreement he had received from
Erewhon in discovery, electronically signed by Isaac Lopez,
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Palacios’ manager, but not by Palacios, and purportedly bearing
Holmes’ signature.
The trial court sustained Palacio’s objections to Holmes’
declaration on the grounds that Holmes lacked personal
knowledge, the documents lacked foundation, and Holmes’
statements were speculative because his exhibits were not
translated. The trial court noted the “various versions of the
arbitration agreement” making it “unclear, which, if any, was the
one arbitration agreement which would establish a sufficient
meeting of the minds between the parties.” Erewhon’s motion was
denied on September 29, 2020.
LEGAL DISCUSSION
Standard of Review. Where as here the trial court’s
decision is based on the resolution of a factual dispute, we draw
every permissible inference in favor of the trial court and will
affirm if the order is supported by substantial evidence. (Bannister
v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545; Laswell
v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1406.)
Substantial evidence supports the trial court’s order.
Erewhon insists its showing in support of its motion to compel
arbitration was “sufficient” and that, because arbitration is
favored, its motion should have been granted. Erewhon ignores
the fact that the trial court found there was no agreement to
arbitrate — and the fact that Erewhon says there was an
agreement is insufficient to establish its existence, particularly in
light of Palacios’ declaration stating that she was not provided
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anything in Spanish, statements supported by her attorney’s
declaration that the only document produced by Erewhon during
discovery is in English.
At the hearing on the motion, Erewhon asked the trial court
to deny its motion without prejudice so that it could locate the
Spanish version supposedly signed by Palacios. Palacios objected
and the trial court denied the request, explaining in its written
ruling that Erewhon had failed to authenticate the documents it
relied on as the arbitration agreement. The trial court reasonably
found there were too many unanswered questions about the terms
of the so-called arbitration agreement and whether Palacios had
an opportunity to review the documents in Spanish.
In short, Erewhon did not meet its burden of establishing the
existence of a valid arbitration agreement. (Fagelbaum & Heller
LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.) More to the
point, Erewhon did not establish the validity of Palacios’ electronic
signature. (Civ. Code, §§ 1633, 1633.1, 1633.7, subd. (a); Evid.
Code, § 1401; Fabian v. Renovate America, Inc. (2019)
42 Cal.App.5th 1062, 1063 [affirming order denying motion to
compel arbitration where the defendant failed to prove the plaintiff
had electronically signed the agreement]; Ruiz v. Moss Bros. Auto
Group, Inc. (2014) 232 Cal.App.4th 836, 838-840 [affirming an
order refusing to compel arbitration where purported agreement
was electronically signed].)
Erewhon does not dispute Palacios’ inability to read or
understand English, nor does it explain why the only document
provided during discovery was in English. On these facts, it is
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clear the trial court did not err in finding Palacios’ testimony
credible.
DISPOSITION
The order denying the motion to compel arbitration is
affirmed. Palacios is awarded her costs of appeal.
NOT TO BE PUBLISHED
VOGEL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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