Marsha Lewis-Seamster et al vs Real Time Staffing Services LLC et al

Case Number

23CV03231

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 10:00

Nature of Proceedings

CMC; Motion to Compel

Tentative Ruling

For all reasons stated herein, defendants’ motion to compel plaintiffs’ claims to individual arbitrations and to stay these proceedings is granted, in part, as to the first through eleventh and fourteenth through seventeenth causes of action alleged in the first amended complaint filed by plaintiffs in this action. These proceedings shall be stayed in accordance with this ruling. Defendants Real Time Staffing Services, LLC dba Select Staffing and EmployBridge, LLC, shall submit a corrected proposed order that reflects the Court’s ruling herein.

Background:

On July 26, 2023, plaintiffs Marsha Lewis-Seamster (Lewis-Seamster) and Shonna Minnifield (Minnifield) filed a complaint alleging seventeen causes of action against defendants Real Time Staffing Services, LLC (Real Time), EmployBridge, LLC (EmployBridge), and Deckers Outdoor Corporation (Deckers) (collectively, defendants): (1) discrimination based on race in violation of the California Fair Employment and Housing Act or FEHA; (2) harassment based on race in violation of FEHA; (3) discrimination based on disability in violation of FEHA; (4) harassment based on disability in violation of FEHA; (5) failure to engage in the interactive process in violation of FEHA; (6) failure to provide reasonable accommodation in violation of FEHA; (7) discrimination, retaliation and failure to reinstate in violation of the California Family Rights Act or CFRA; (8) retaliation in violation of FEHA; (9) failure to prevent discrimination, harassment and retaliation in violation of FEHA; (10) wrongful termination in violation of public policy; (11) retaliation in violation of Labor Code section 1102.5; (12) failure to pay timely wages during employment; (13) failure to pay all wages due to discharged and quitting employees; (14) failure to maintain required records; (15) failure to furnish accurate, itemized wage statements; (16) failure to reimburse necessary expenditures; and (17) unfair and unlawful business practices.

On August 11, 2023, Lewis-Seamster and Minnifield filed their first amended complaint (the FAC) in this action, adding Natasha Huff (Huff) as a plaintiff and alleging the same seventeen causes of action against defendants as further described above. As alleged in the operative FAC:

Lewis-Seamster, Minnifield, and Huff (collectively, plaintiffs), who are Black, were hired by defendants to work as packers tasked with preparing and packing shoes for shipment from a Deckers warehouse. (FAC, ¶¶ 22-23, 25, 30-31, 33, 35-37.) Lewis-Seamster was hired on August 18, 2021, Minnifield was hired on September 1, 2021, and Huff was hired on February 22, 2022. (Id. at ¶¶ 22, 30 & 35.)

Lewis-Seamster and Minnifield were not reimbursed for the use of personal cell phones which they used for scheduling purposes. (FAC, ¶¶ 24 & 32.) Throughout the course of Lewis-Seamster’s employment, Lewis-Seamster’s manager, Marisella, excluded Lewis-Seamster from daily conversations with other employees by speaking exclusively in Spanish, a language which Lewis-Seamster did not understand. (Id. at ¶ 25.) On one occasion, Marisella and Maria, another coworker, laughed at Lewis Seamster and made remarks in Spanish when she informed them that her shoes were stolen. (Ibid.) In addition, Marisella and other coworkers picked Lewis-Seamster’s work apart to search for wrongdoings and monitored Lewis-Seamster during her restroom breaks to ensure that she was not using her cell phone. (Id. at ¶ 26.) In addition, defendants denied Lewis-Seamster the opportunity to be selected for overtime shifts during the holiday season. (Id. at ¶ 26.)

On numerous occasions, Lewis-Seamster requested to be transferred to another department but defendants repeatedly denied her request and only offered her a night shift position, despite the availability of day shift positions in other departments. (FAC, ¶ 27.) The majority of the day shift workers were Hispanic, while the majority of the night shift workers were African American. (Ibid.)

On November 30, 2021, Lewis-Seamster made a verbal complaint to human resources regarding defendants’ conduct but defendants continued to neglect Lewis-Seamster’s concerns and issued Lewis-Seamster a write-up immediately following her complaint. (FAC, ¶ 28.) In January 2022, Lewis-Seamster used sick leave to cope with the physical and mental strains associated with her job. (Id. at ¶ 29.) Though Lewis-Seamster had documentation from her doctor for her sick leave, defendants terminated Lewis-Seamster while she was out on leave and did not pay Lewis-Seamster for her sick leave. (Ibid.) Defendants replaced Lewis-Seamster with another African American woman but would repeatedly criticize the hair and nails of all the black female employees, in addition to preventing the black employees only from speaking with each other. (Id. at ¶ 34.)

Minnifield’s Hispanic supervisors would constantly monitor Minnifield while she was on restroom breaks, but not other coworkers. (FAC, ¶ 33.) While other coworkers were permitted to speak amongst each other, Minnifield and Lewis-Seamster were reprimanded whenever they would attempt to converse with one another. (Ibid.) Minnifield submitted an incident report outlining her treatment and felt so uncomfortable that she decided to quit her position in May 2022. (Id. at ¶34.)

On Huff’s first day of work, Huff’s Hispanic supervisor sent her home because her fingernails were too long and told Huff not to return until she had taken off her long nails. (FAC, ¶ 37.) Huff complained to the supervisor that she felt targeted because other Hispanic employees were allowed to work with long nails and stated that there was nothing in the orientation material about not being allowed to have long nails. (Ibid.) In response, Huff’s supervisor stated that she was not sure why it was not mentioned in the orientation, but long nails were not allowed. (Ibid.) Huff’s supervisors also told Huff that she was not allowed to wear a pouch during work hours despite allowing other non-Black employees to do so. (Id. at  ¶ 38.)

On one occasion, Huff used the employee restroom, and when she came out, there was a Hispanic supervisor waiting for her who asked why she took so long in the restroom. (FAC, ¶ 39.) On other occasions, when Huff would briefly walk off the floor to retrieve something, her Hispanic supervisors would question her but would not do the same to other Hispanic employees. (Ibid.) Huff’s supervisors told her that she could not use an opaque water bottle despite allowing other Hispanic employees to use opaque water bottles. (Ibid.)

After the incident with the water bottle and after defendants gave Huff a writeup for tending to her sick daughter despite the fact that Huff followed company protocols, Huff requested a meeting with several Hispanic managers that were above her immediate supervisors. (FAC, ¶ 40.) In the meeting, Huff explained that she felt targeted by her Hispanic supervisors because of her race but defendants took no action in response to Huff’s complaints. (Ibid.) A few months later, defendants terminated Huff for leaving the floor to answer an important phone call. (Id. at ¶ 41.)

On September 20, 2023, Deckers filed a response to the FAC generally denying its allegations and asserting twenty-six affirmative defenses.

On October 19, 2023, Real Time and EmployBridge filed an answer to the FAC generally denying its allegations and asserting sixty-six affirmative defenses.

On December 27, 2023, the Court entered its order granting a stipulation of the parties to permit Real Time to file an omnibus motion to compel individual arbitration (the motion) with respect to all three plaintiffs. (Dec. 27, 2023, Order, ¶ 1.) The Court further ordered that the opening memorandum of Real Time in support of the motion will have 20 pages, that plaintiffs will have 20 pages for their opposition to the motion, and that Real Time will have 13 pages for its reply. (Id. at ¶¶ 2-4.) The Court otherwise stayed these proceedings pending its ruling on the motion. (Id. at ¶ 5.)

On April 25, 2024, Real Time and EmployBridge filed the motion requesting an order compelling plaintiffs submit their claims to binding individual arbitration pursuant to the terms of a Mutual Agreement Regarding Arbitration And Class Claims (the Arbitration Agreement) allegedly executed by Lewis-Seamster, Minnifield, and Huff, and staying this action until the arbitrations are completed.

On April 30, 2024, Deckers filed a notice joining in and adopting arguments and evidence presented in the motion on the grounds that plaintiffs entered into an enforceable agreement to arbitrate claims relating to their employment.

The motion is opposed by plaintiffs.

Analysis:

For all reasons further discussed below, the Court will grant the motion of Real Time and EmployBridge, in part, and will order the claims alleged against defendants in the first through eleventh and fourteenth through seventeenth causes of action of the FAC to proceed to individual arbitration as provided herein. The Court will further order litigation of the claims alleged in the twelfth and thirteenth causes of action stayed pending the completion of the individual arbitrations. In addition, the Court will direct Real Time and EmployBridge to submit a corrected proposed order that conforms to the Court’s ruling herein.

“ ‘Arbitration is ... a matter of contract.’ [Citation.] ‘The policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate. Although the law favors contracts for arbitration of disputes between parties, there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate. Absent a clear agreement to submit disputes to arbitration, courts will not infer that the right to a jury trial has been waived.’ [Citations]” (Remedial Construction Services, LP v. AECOM, Inc. (2021) 65 Cal.App.5th 658, 663, italics omitted.)

 

California law incorporates the presumption in favor of arbitrability contained in the Federal Arbitration Act, codified at 9 United States Code section 1 et seq. (the FAA), and the requirement that “an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation].” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972 (Engalla).) “Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” (Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 683; see also 9 U.S.C. § 4; Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130 [under the FAA, the court must determine “(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue”].)

When a motion to compel arbitration is filed, “the petitioner bears the burden of proving [the] existence [of a written agreement to arbitrate the controversy] by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) If the opposing party raises a defense to enforcement of the agreement, “that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Ibid.)

A party moving to compel arbitration “ ‘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.’ [Citation.] Alternatively, the moving party can meet its burden by setting forth the agreement’s provisions in the motion. [Citations.] For this step, ‘it is not necessary to follow the normal procedures of document authentication.’ [Citation.] 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. [¶] 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.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).)

Existence of an agreement to arbitrate the present controversy:

In support of the motion, Real Time and EmployBridge submit the declaration of Jessica Sanchez (Sanchez) who states that she has worked for EmployBridge as a “Product Owner” since February 2020. (Sanchez Decl., ¶ 2.) In her role as Product Owner, Sanchez has worked with Real Time which is a subsidiary of EmployBridge that does business as “Select Staffing.” (Ibid.) Sanchez further states that she is responsible for managing and overseeing the development of Real Time’s use of a Microsoft Dynamics Customer Relationship Management (CRM) program, the development and execution of an integrated Online Application Entry (OAE) system, the processes and implementation of policies and procedures with respect to hiring and onboarding of Real Time employees, and documentation provided to and by applicants and employees by and to Real Time. (Id. at ¶ 3.) Sanchez also has knowledge of Real Time’s organizational and operating structure. (Ibid.) Sanchez further declares:

Real Time hires and places employees at temporary assignments with various clients throughout the United States, including Deckers. (Sanchez Decl., ¶ 4.) Real Time utilizes a web-based OAE system which allows job applicants to electronically apply for positions and complete the onboarding process directly through Real Time’s website. (Id. at ¶ 5.) In addition, Real Time uses “Adobe Sign” which permits an applicant to receive, view, and acknowledge certain documents, including company policies, procedures, and new hire paperwork, in connection with the hiring or onboarding process. (Ibid.) Adobe Sign also allows an applicant to choose among various methods in which to sign a document, which include creating a signature using a mouse, having Adobe prepare the applicant’s name in a signature type font, or creating a signature using a stylus or finger on a touch screen device. (Ibid.)

To apply for employment through Real Time, an applicant must access and submit an employment application directly through Real Time’s website. (Sanchez Decl., ¶ 9.) During the time period that plaintiffs applied to Real Time and were assigned to work for Deckers, all applicants had to complete an online onboarding process through Real Time’s OAE system prior to becoming an employee of Real Time. (Ibid.) To begin the application and onboarding process, the applicant must create a unique user account including a unique username and password which Real Time cannot access. (Ibid.) In addition, no other individual except for the applicant can access or otherwise complete the application and onboarding process. (Ibid.)

After an applicant submits their application, the applicant can then access and review, as an “Adobe PDF,” the onboarding documents of Real Time which include the Arbitration Agreement. (Sanchez Decl., ¶ 10.) These documents can be signed using Adobe Sign. (Ibid.) Before signing, an applicant is required to check either an “Accept Agreement” or “Decline Agreement” box on the Arbitration Agreement. (Ibid.) An applicant may check the “Decline Agreement” box and still move forward with the application or onboarding processes of Real Time. (Ibid.) Further, the Arbitration Agreement is periodically updated and each applicant is asked to access and review the most recent version of the Arbitration Agreement when onboarding for a new assignment. (Ibid.)

To move forward with the onboarding process and otherwise review or sign documents including the Arbitration Agreement, the applicant must confirm his or her name as originally entered into Real Time’s OAE system to be populated into the onboarding documents. (Sanchez Decl., ¶ 11.) The applicant is also required to confirm his or her preferred signature method for certain onboarding documents which request or require a signature. (Ibid.) For those documents that request or require the applicant’s signature, the applicant is required to designate and place his or her digital signature as indicated on the document. (Ibid.) Once the applicant affirmatively elects to sign a document, including the Arbitration Agreement, the Adobe Sign program then populates the corresponding date on that document. (Ibid.) Once the onboarding process is completed, the documents are saved in the applicant’s CRM file as static Adobe PDF files which do not allow for any modifications to be made. (Ibid.)

The records stored on Real Time’s OAE system or in Adobe Sign are the primary means of verifying that job applicants or newly-hired employees have: (i) received the documents and information presented in the application, hiring, and onboarding processes; (ii) provided certain information required for human resources and payroll purposes, and (iii) agreed to abide by generally applicable rules and policies of Real Time. (Sanchez Decl., ¶ 6.) The personnel records and documents contained in the OAE system and Adobe Sign are maintained in the ordinary course of Real Time’s business and reflect true and correct copies of documents created or acknowledged by employees or other persons with a business duty to do so and with personal knowledge of the records or events stated therein, at or near the time of the events reflected therein. (Id. at ¶ 7.)

In the normal course and scope of her duties, Sanchez can and regularly does access employee applications as well as new-hire and onboarding, personnel, and employment related documents and information stored in the OAE system, Adobe Sign, and other systems and records of Real Time. (Sanchez Decl., ¶ 8.) Sanchez is also familiar with the way in which these records are created and maintained. (Ibid.)

Sanchez accessed and reviewed records maintained by Real Time with respect to plaintiffs, including plaintiffs’ OAE system and Adobe Sign files, personnel files, and all documents acknowledged by plaintiffs in the course of their applications and employment with Real Time, and the onboarding process for plaintiffs’ assignments with Deckers. (Sanchez Decl., ¶¶ 8 & 13.) Based on Sanchez’s review of the personnel files of plaintiffs, plaintiffs chose to have Adobe prepare their names in a “signature” type font. (Id. at ¶ 5.)

According to information recorded in the OAE system, Lewis-Seamster submitted an employment application to Real Time through Real Time’s website on August 9, 2021. (Sanchez Decl., ¶ 14.) To do so, Lewis-Seamster created her own unique user account, username, and password to which Real Time did not and never has had access. (Ibid.) Upon submitting her application, Lewis-Seamster was granted access to Real Time’s onboarding documents including the Arbitration Agreement then in effect. (Ibid.) Lewis-Seamster accessed the onboarding documents, including the Arbitration Agreement, as Adobe PDF documents. (Ibid.)

During the onboarding process, Lewis-Seamster confirmed her name as originally entered into the OAE system to be populated into the onboarding documents and confirmed her preferred signature method for onboarding documents that requested or required a signature. (Sanchez Decl., ¶ 15.) On August 10, 2021, Lewis-Seamster consented to using her electronic signature and acknowledged that her electronic signature would be binding as though she had physically signed the documents by hand. (Id. at ¶ 15 & Exh. 1 [Electronic Signature Consent form ostensibly signed by Lewis-Seamster on Aug. 10, 2021].)

For documents that requested or required a signature, Lewis-Seamster designated and placed her digital signature as indicated on the document. (Sanchez Decl., ¶ 15.) Once Lewis-Seamster affirmatively elected to sign a document, including the Arbitration Agreement, the Adobe Sign program then populated the corresponding date on that document. (Ibid.) Though Lewis-Seamster was not required to accept the Arbitration Agreement as a condition of employment with Real Time or placement with Deckers, on August 10, 2021, Lewis-Seamster elected the “Accept Agreement” option on and signed the Arbitration Agreement. (Id. at ¶ 15 & Exh. 2 [Arbitration Agreement ostensibly signed by Lewis-Seamster on Aug. 10, 2021].) Once Lewis-Seamster completed the onboarding documents, they were saved in her CRM file as static Adobe PDF files which do not allow for any changes or modifications. (Id. at ¶ 17.)

The records of Real Time show that on August 11, 2021, Lewis-Seamster was placed on a temporary assignment at a Deckers facility in Moreno Valley, California. (Sanchez Decl., ¶ 20.) These records also show that Lewis-Seamster’s assignment was expected to end on August 6, 2022, and that Lewis-Seamster’s assignment with Deckers ended on February 23, 2022. (Ibid.)

Based on information recorded in the OAE system of Real Time, Minnifield submitted an employment application through Real Time’s website in January 2018. (Sanchez Decl., ¶ 21.) After submitting her application, Minnifield was granted access to the onboarding documents of Real Time in March 2018, and on March 13, 2018, Minnifield reviewed and signed onboarding documents related to her first assignment with a client of Real Time and which included the Arbitration Agreement. (Id. at ¶ 21 & Exh. 3 [Arbitration Agreement ostensibly signed by Minnifield on Mar. 13, 2018].) When Minnifield completed the Arbitration Agreement on March 13, 2018, she elected to mark a signature in her own handwriting on the screen provided. (Id. at ¶ 24.)

In August 2020, after her first assignment had ended, Minnifield again accessed the OAE system to seek a new assignment upon which Minnifield was presented with and completed updated onboarding documents including the Arbitration Agreement in effect as of August 2020. (Sanchez Decl., ¶ 22 & Exh. 4 [Arbitration Agreement ostensibly signed by Minnifield on Aug. 4, 2020].) When Minnifield completed the Arbitration Agreement on August 4, 2020, she elected to mark a signature in her own handwriting on the screen provided. (Id. at ¶ 24.)

On October 23, 2021, Minnifield again accessed the OAE system to seek a new assignment with Deckers. (Sanchez Decl., ¶ 23.) Minnifield was required to review and complete Real Time’s onboarding documents in effect at the time including an Electronic Signature Consent form and the Arbitration Agreement then in effect. (Ibid.) Minnifield signed the Electronic Signature Consent form and acknowledged that her electronic signature would be binding as though she had physically signed the documents by hand. (Sanchez Decl., ¶ 23 & Exh. 5 [Electronic Signature Consent form ostensibly signed by Minnifield on Oct. 14, 2021].) Thereafter, Minnifield accessed the then current onboarding documents including the Arbitration Agreement which Minnifield signed for a third time by electing to use an electronic signature. (Id. at ¶¶ 23-24 & Exh. 6 [Arbitration Agreement ostensibly signed by Minnifield on Oct. 14, 2021.)

Each time Minnifield accessed the OAE system of Real Time to complete the onboarding process, Minnifield confirmed her name as originally entered to be populated into the onboarding documents, confirmed her preferred signature method for those documents that requested a signature, and designated or placed her digital signature on documents that requested or required Minnifield’s signature. (Sanchez Decl., ¶ 24.) Once Minnifield affirmatively elected to sign a document including the Arbitration Agreement, the Adobe Sign program then populated the corresponding date on that document. (Ibid.) Each time Minnifield completed her onboarding documents, the documents were saved in her CRM file as static Adobe PDF files which could not be changed or modified. (Id. at ¶ 26.)

Minnifield was not required to accept the Arbitration Agreement as a condition of her employment with Real Time or her placement with Deckers, and could have selected the option to “Decline Agreement,” and the system would have permitted Minnifield to continue with the application and onboarding process. (Sanchez Decl., ¶ 25.)

The records of Real Time also show that Minnifield was placed on a temporary assignment at a Deckers facility in Moreno Valley, California, on October 14, 2021. (Sanchez Decl., ¶ 29.) Minnifield’s assignment was expected to end on June 5, 2022. (Ibid.) Real Time’s records show that Minnifield’s temporary assignment with Deckers ended on May 21, 2022. (Ibid.)

Huff submitted an employment application through the Real Time website sometime in September 2015 by creating a unique user account, username, and password to which Real Time did not and never has had access. (Sanchez Decl., ¶ 30.) Upon submitting her application, Huff was added to Real Time’s system as an employee available to accept assignments. (Ibid.) On August 10, 2016, in connection with her first assignment with a client of Real Time, Huff was granted access to and signed onboarding documents including the Arbitration Agreement then in effect. (Sanchez Decl., ¶ 30 & Exh. 7 [Arbitration Agreement ostensibly signed by Huff on Aug. 10, 2016.) Huff remained in Real Time’s system to be selected for assignments. (Id. at ¶ 30.)

On February 16, 2022, in connection with her assignment to work at Deckers, Huff was granted access to the onboarding documents of Real Time in effect at the time including the Arbitration Agreement. (Sanchez Decl., ¶ 31.) Huff accessed the then current onboarding documents as Adobe PDF documents and signed the Arbitration Agreement on February 16, 2022. (Id. at ¶ 31 & Exh. 8 [Arbitration Agreement ostensibly signed by Huff on Feb. 16, 2022].) Though Huff was not required to accept the Arbitration Agreement presented to her in February 2022, and could have elected “Decline Agreement” and moved forward with the application and onboarding process, Huff selected the “Accept Agreement” option and signed the document. (Id. at ¶ 32.)

After her assignment with Deckers ended, Huff sought another assignment and accessed the OAE system again in January 2023. (Sanchez Decl., ¶ 33.) Huff signed an Electronic Signature Consent form, and acknowledged that her electronic signature would be binding as though she had physically signed the documents by hand. (Id. at ¶ 33 & Exh. 9 [Electronic Signature Consent form ostensibly signed by Huff on Jan. 9, 2023].) Huff signed updated onboarding documents including the Arbitration Agreement in effect as of January 2023 which, according to Sanchez, superseded all prior versions signed by Huff. (Id. at ¶ 33 & Exh. 10 [Arbitration Agreement ostensibly signed by Huff on Jan. 9, 2023].) Though Huff was not required to accept the Arbitration Agreement presented to her in January 2023 and could have elected “Decline Agreement” and moved forward with the application and onboarding process, Huff selected the “Accept Agreement” option on the Arbitration Agreement and signed the document. (Id. at ¶ 34.)

Each time Huff accessed the OAE system to complete the onboarding process, Huff confirmed her name to be populated onto the onboarding documents, confirmed her preferred signature method for documents that requested or required a signature, and designated or placed her digital signature as indicated on the document. (Sanchez Decl., ¶ 35.) Once Huff elected to sign a document including the Arbitration Agreement, the Adobe Sign program populated the corresponding date on the document. (Ibid.) In addition, each time Huff completed her onboarding documents, the documents were saved in her CRM file as static Adobe PDF files which could not be changed or modified. (Id. at ¶ 36.)

The records of Real Time show that on February 17, 2022, Huff was placed on a temporary assignment at a Deckers facility in Moreno Valley, California which was expected to end on October 29, 2022. (Sanchez Decl., ¶ 39.) Huff’s assignment with Deckers ended on May 18, 2022. (Ibid.)

In a proceeding to resolve a motion to compel arbitration, “the trial court sits as a trier of fact….” (Engalla, supra, 15 Cal.4th at p. 972.) The evidence offered by Real Time and EmployBridge, which includes copies of the Arbitration Agreement at issue, shows that plaintiffs each ostensibly signed the Arbitration Agreement each time they accessed the onboarding documents of Real Time as further discussed above. (See, e.g., Sanchez Decl., Exh. 2 at p. 2 [Lewis-Seamster signature]; Exh. 3 at p. 2 [Minnifield signature]; Exh. 4 at p. 2 [same]; Exh. 6 at p. 2 [same]; Exh. 7 [Huff signature]; Exh. 8 at p. 2 [same]; Exh. 10 at p. 3 [same].)

The Arbitration Agreement ostensibly signed by Lewis-Seamster provides that in the event of a dispute “relating to or arising out of the employment or the termination of [Lewis-Seamster’s] employment, whether such claims arise before or after the signing of this Agreement”, Lewis-Seamster, EmployBridge, and Real Time “agree to submit all such claims or disputes to be resolved by final and binding arbitration, instead of going to court, in accordance with the procedural rules of the Federal Arbitration Act.” (Sanchez Decl., Exh. 2 at p. 1, ¶ 2.)

The Arbitration Agreement ostensibly signed by Lewis-Seamster further provides that Lewis-Seamster is “agreeing to this on [her] own accord and understands that said disputes may include but are not limited to claims for or under: breach of contract, fraud, misrepresentation, defamation, personal injury, wages, salary, compensation, reimbursement, penalties, wrongful termination, constructive termination, sick pay, paid leave, the Federal Labor Standards Act and comparable state or local laws, the Civil Rights Act of 1964, as amended, 42 U.S.C. section 1981, the Americans with Disabilities Act, and/or other federal or comparable state or local laws that prohibit discrimination, harassment or retaliation based on religion, sex, age, color, race, national origin, nationality, physical, mental or emotional impairment, disability, medical condition, marital status, or other basis, and comparable state or local laws, the Family and Medical Leave Act and comparable state or local laws, the Employee Retirement Income Security Act (ERISA), and state laws regarding unfair competition or unfair business practices.” (Sanchez Decl., Exh. 2 at p. 1, ¶ 3.)

The evidence further shows that Minnifield signed the Arbitration Agreement on four separate occasions. The version of the Arbitration Agreement signed by Minnifield on October 14, 2021, which the evidence reflects is the date Minnifield was placed on a temporary assignment at the Deckers facility, includes identical language as the Arbitration Agreement signed by Lewis-Seamster further described above. (See Sanchez Decl., Exh. 6 at p. 1, ¶¶ 2 & 3.) The version of the Arbitration Agreement signed by Huff prior to or at the time Huff began her assignment at the Deckers facility also includes identical language as further described above. (Id. at Exh. 8, p. 1, ¶¶ 2 & 3.)

Real Time and EmployBridge have sufficiently alleged the existence of an agreement to arbitrate the claims alleged by plaintiffs on the face of the FAC by providing copies of each version of the Arbitration Agreement that ostensibly reflect each of plaintiffs’ digital signatures as further described in the Sanchez declaration and by reciting relevant provisions of the Arbitration Agreement including those that provide for arbitration of the claims alleged on the face of the FAC. For these reasons, the Court finds that Real Time and EmployBridge have met their initial prima facie burden to provide evidence of a written agreement to arbitrate the present controversy. (Gamboa, supra, 72 Cal.App.5th at p. 165; Cal. Rules of Court, rule 3.1330; see also Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [“[t]he party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent’s signature”; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [moving party may meet its initial burden to allege the existence of the agreement by reciting its terms in the motion].)

The burden now shifts to plaintiffs to identify a factual dispute as to the existence of an agreement to arbitrate and to produce evidence to challenge the authenticity of the Arbitration Agreement. (Gamboa, supra, 72 Cal.App.5th at p. 165.)

In the declarations of Lewis-Seamster, Minnifield, and Huff submitted in support of plaintiffs’ opposition to the motion, plaintiffs offer no information, evidence, or reasoned argument to show that their respective signatures on any version of the Arbitration Agreement are not authentic. Plaintiffs also do not contend that they did not receive or sign the Arbitration Agreement or any specific version of the Arbitration Agreement. Subject to exceptions further discussed below, plaintiffs also do not offer reasoned argument to demonstrate that the versions of the Arbitration Agreement in effect on each date plaintiffs signed that document do not encompass the disputes or issues raised or alleged on the face of the FAC. Therefore, and subject to exceptions, the Court finds that Real Time and EmployBridge have met their burden to show the existence of an agreement to arbitrate the disputes alleged by plaintiffs in this action.

Applicability of the Federal Arbitration Act:

In their opposition, plaintiffs contend that Real Time and EmployBridge have failed to present any evidence or information to establish that plaintiffs’ employment affected the channels of interstate commerce. Therefore, plaintiffs argue, Real Time and EmployBridge have failed to establish that the Arbitration Agreement is governed by the Federal Arbitration Act, codified at 9 United States Code section 1 et seq. (the FAA). In addition, and for this same reason, plaintiffs contend the Arbitration Agreement is governed solely by Code of Civil Procedure section 1280 et seq. (the California Arbitration Act or Act.)

The FAA “provides for the enforcement of arbitration provisions in any contract evidencing a transaction involving interstate commerce.” (Mount Diablo Medical Center v. Health Net of California, Inc. (2002) 101 Cal.App.4th 711, 717 (Mount Diablo).) The terms “involving commerce” are “the functional equivalent of “affecting[]” commerce. (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 273-274.) “[T]he pertinent question is whether the contract evidences a transaction involving interstate commerce, not whether the dispute arises from the particular part of the transaction involving interstate commerce.” (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101; see also Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56–57 [“Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice ... subject to federal control.’ [Citations.] Only that general practice need bear on interstate commerce in a substantial way. [Citation.]”].)

As further discussed above, information provided by Sanchez shows that Real Time hires and places employees at temporary assignments throughout the United States including Deckers. In addition, Real Time and EmployBridge submit the declaration of Esteban Arellano (Arellano), who states that he is a Senior Human Resources Manager for Deckers at its facility in Moreno Valley, California, at which plaintiffs were assigned to work. (Arellano Decl., ¶ 2.) Arellano states that he is familiar with the operations at Deckers’ Moreno Valley Distribution Center and the duties performed by temporary workers at that facility. (Id. at ¶¶ 2 & 4.)

Arellano asserts that Deckers designs and markets footwear and apparel under several brands throughout the United States. (Arellano Decl., ¶ 3.) Arellano further states that Deckers’ Moreno Valley facility is divided between two separate fulfillment and shipping operations. (Id. at ¶ 9.) The fulfillment function includes departments which Arellano refers to as “Pack Out, VAS, Pic Mod, Error Resolution, Case Throw, and Inline VAS.” (Ibid.) At the shipping side of the facility are located trucks which are loaded or unloaded. (Ibid.) The shipping department includes duties such as “staging shipments, verifying pallet completion, bundling product into pallets for shipment outside of the facility, breaking down pallets arriving at the facility, moving product on or off the warehouse shelves at the facility, operating a forklift, or loading or unloading goods from trucks.” (Id. at ¶ 10.)

Arellano declares that plaintiffs worked as warehouse associates in the “Pack Out Department” of the Deckers facility and were responsible for packing product into shoe boxes. (Arellano Decl., ¶¶ 9 & 21.) Arellano further states that plaintiffs would be given general specifications for an order, place the requested goods in a shoe box, and put the shoe box onto a conveyor belt which would take the boxes to the other side of the facility where Deckers’ shipping department is located. (Id. at ¶ 10.)

The information offered in the Sanchez and Arellano declarations is sufficient to demonstrate the multistate nature of Deckers’ business activities, which ostensibly includes the design, marketing, and shipment of product throughout the United States. Though plaintiffs contend that the shoes they handled could have been manufactured and distributed in California alone, plaintiffs also contend that they worked as transportation workers and played a role in the flow of product across borders. (See Memorandum at pp. 4-8.) Plaintiffs’ contentions in this regard are further addressed below. However, the Court notes that plaintiffs’ arguments appear contradictory. Unless Deckers was engaged in interstate commerce, it is unclear to the Court on what basis plaintiffs contend that they were engaged in a role which involved the interstate commerce of goods. (See, e.g., Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, 1162 [noting that employee in that case “fulfilled an admittedly small but nevertheless ‘direct and necessary’ role in the interstate commerce of goods”].) Moreover, apart from asserting general and speculative conclusions regarding whether all of the shoes handled by plaintiffs were shipped in or out of state, plaintiffs offer insufficient evidence to rebut the information presented in the Sanchez and Arellano declarations.

The economic activity of Deckers described in the Arellano declaration demonstrates a general practice that bears on interstate commerce in a substantial manner. Therefore, by virtue of their duties and activities while employed at the Deckers facility as discussed above, plaintiffs’ work activities also affected interstate commerce. Further, even if plaintiffs’ work activities did not have a specific effect on interstate commerce, because the aggregate economic activity at the Deckers facility to which plaintiffs were assigned appears to represent a general practice bearing on commerce, it is subject to federal control. Therefore, Deckers has met its burden to show that the employment activity at issue substantially affected interstate commerce such that the Arbitration Agreement is subject to the substantive provision of the FAA. (Bernhardt v. Polygraphic Co. of America (1956) 350 U.S. 198, 200-201 [the FAA governs if employee performing duties was “working ‘in’ commerce, was producing goods for commerce, or was engaging in activity that affected commerce”]; Valencia v. Smyth (2010) 185 Cal.App.4th 153, 173-174 (Valencia) [“if a contract involves interstate commerce, the FAA’s substantive provision (9 U.S.C. § 2) applies to the arbitration”], original italics.)

In addition, “the presence of interstate commerce is not the only manner under which the FAA may apply.” (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.) Though the FAA’s procedural provisions were intended to apply only in federal court proceedings, the parties to an arbitration agreement may “expressly designate that any arbitration proceeding should move forward under the FAA’s procedural provisions rather than under state procedural law.” (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 388-389, 391, 394 (Cronus), original italics; see also Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 469 (Volt) [parties may “specify by contract the rules under which the arbitration will be conducted”].) Therefore, and “[i]n accordance with choice-of-law principles, the parties may limit the trial court’s authority … under the [California Arbitration Act] by adopting the more restrictive procedural provisions of the FAA.” (Valencia, supra, 185 Cal.App.4th at p. 157.)

Whether an agreement to arbitrate incorporates the procedural provisions of the FAA “is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence).” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1117.) “[T]he starting point in the interpretation of [a] choice-of-law clause, like any contractual provision, is with the language of the contract itself.” (Mount Diablo, supra, 101 Cal.App.4th at p. 722; see also Cronus, supra, 35 Cal.4th at p. 384 [“state contract rules generally govern the construction of arbitration agreements”].)

As further discussed above, the express language of the Arbitration Agreement including each version signed by plaintiffs provides that the arbitration of claims or disputes encompassed therein shall be in accordance with the procedural rules of the FAA. (Sanchez Decl., Exhs. 2-4, 6-8 & 10.) The choice-of-law provision contained in the Arbitration Agreement is unambiguous and demonstrates that the parties intended that the procedural rules of the FAA would govern the arbitration of disputes described in the Arbitration Agreement.

For all reasons discussed above, the FAA’s substantive rules apply to the Arbitration Agreement due to the substantial relationship of Deckers’ economic activity to interstate commerce as further discussed above, In addition, the plain and unambiguous express language of the Arbitration Agreement demonstrates that the parties expressly and voluntarily agreed that the procedural rules of the FAA would apply to arbitrable disputes. Therefore, the Court finds that the Arbitration Agreement is governed by the FAA.

Plaintiffs’ defense to enforcement of the Arbitration Agreement based on the FAA exemption for “transportation workers”:

Plaintiffs contend that the Arbitration Agreement is exempt from the FAA because plaintiffs were employed as transportation workers at the Deckers facility. To support this contention, Lewis-Seamster declares that the location at which she worked did not manufacture shoes but rather received, processed, and shipped shoe orders. (Lewis-Seamster Decl., ¶ 4.) Lewis-Seamster further states that her job responsibilities at Deckers included working as a “Packer” packing shoes for shipment and waiting for shoes to enter her area through chute after which Lewis-Seamster would put the shoes in boxes and then on shelves for the purpose of shipment to customers. (Id. at ¶ 5.) Lewis-Seamster also states that she worked as a “Picker” at the Deckers facility, which involved receiving notifications when a customer ordered a shoe, pulling the shoe from a shelf, scanning the shoe, placing the shoe in a box, and placing the box on a conveyer belt which Lewis-Seamster understood would take the box to be shipped out to the customer. (Id. at ¶ 6.)

The job duties of Minnifield at the Deckers facility as described in the Minnifield declaration were effectively the same or similar to those described in the Lewis-Seamster declaration. (Minnifield Decl., ¶¶ 4-6.) Huff declares that her job responsibilities at the Deckers facility involved only packing which required Huff to wait for shoes to enter her area through a chute and to place the shoes in boxes and then on shelves for the purpose of shipment to customers. (Huff Decl., ¶ 5.)

Section 1 of the FAA exempts from the FAA “contracts of employment of transportation workers.” (Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 119 (Circuit City); 9 U.S.C. § 1.) Notwithstanding whether a private arbitration agreement is “crystal clear” requiring “arbitration of every question under the sun” or “emphatically … express[es] a preference for arbitration”, an agreement to arbitrate does not authorize the court to compel arbitration under the FAA if the exclusion under section 1 of the FAA applies. (New Prime Inc. v. Oliveira (2019) 586 U.S. 105, 110-111.) Therefore, a court must first determine whether the exemption applies before ordering arbitration. (Id. at p. 111.)

For reasons further discussed above, plaintiffs bear the burden to prove any fact necessary to their defense to enforcement of the Arbitration Agreement based on the exemption under section 1 of the FAA. (See also Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 124-1243 [truck drivers who filed wage claims against motor carrier company failed to meet burden to demonstrate that section 1 exemption under FAA should apply].)

To qualify as a “transportation worker” for purposes of the exemption provided in section 1 of the FAA, the “worker must at least play a direct and ‘necessary role in the free flow of goods’ across borders. [Citation.] Put another way, transportation workers must be actively ‘engaged in transportation’ of those goods across borders via the channels of foreign or interstate commerce.” (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 458; see also Rogers v. Royal Caribbean Cruise Line (9th Cir. 2008) 547 F.3d 1148, 1155 [exemption clause in section 1 of the FAA states that “even though such workers are engaged in commerce and even though their employment contracts are considered as commercial, the FAA does not apply to them”], original italics.)
 

In Circuit City, the Supreme Court of the United States noted that the “plain meaning” of the words “engaged in commerce” used in the exclusion provided under section 1 of the FAA “is narrower than the more open-ended formulations ‘affecting commerce’ and “’involving commerce[]’ used in the “basic coverage” provision under section 2 of the FAA. (Circuit City, supra, 532 U.S. at pp. 115, 117-118.) Construing the language of the exclusion “with reference to the statutory context in which it is found and in a manner consistent with the FAA’s purpose”, the United States Supreme Court determined “that the § 1 exclusion provision be afforded a narrow construction.” (Id. at p. 118.)

Giving the exemption under section 1 of the FAA a narrow construction as required by the holding in Circuit City further discussed above, the totality of the evidence offered by plaintiffs is insufficient to show that their role at the Deckers facility was direct or necessary to the free flow of product in, or that plaintiffs’ respective job duties were an integral part of, interstate commerce such that plaintiffs were “engaged” in transportation of product across borders through channels of interstate commerce.

For example, plaintiffs offer no evidence to demonstrate that Deckers is in the transportation industry, that the majority of the product handled by plaintiffs at the Deckers facility originated outside of California, or that the primary purpose of plaintiffs’ employment at the Deckers facility was to “continue the flow of interstate commerce” by transporting out-of-state product to its intended destination notwithstanding whether plaintiffs personally transported product from state to state. (See Muller v. Roy Miller Freight Lines, LLC (2019) 34 Cal.App.5th 1056, 1068-1069.)

The evidence offered by plaintiffs is also insufficient to demonstrate that the product handled by plaintiffs at the Deckers facility was transported frequently, or that plaintiffs were involved in the direct transportation of product, across state lines. (See Garrido v. Air Liquide Industrial U.S. LP (2015) 241 Cal.App.4th 833, 840.) For example, plaintiffs appear to suggest that some portion of the shoes processed by plaintiffs at the Deckers facility “arrived at the distribution center from interstate locations” or were “shipped from the distribution center to interstate locations.” (Memorandum at p. 4, ll. 3-5.) Based on the arguments offered in their opposition to the motion, plaintiffs appear to concede that their work did not necessarily or primarily involve the transportation of product across state lines such that plaintiffs were actually engaged in the movement or flow of goods in interstate commerce. (See, e.g., Singh v. Uber Technologies Inc. (3d Cir. 2019) 939 F.3d 210, 223 [discussion of exclusion for “transportation workers” under section 1 of the FAA].) Furthermore, the fact that some quantity of the Deckers products packed by plaintiffs “may have once travelled across state borders does not alter the equation.” (Immediato v. Postmates, Inc. (1st Cir. 2022) 54 F.4th 67, 78.)

The examples provided above are intended to be illustrative but not exhaustive. At best, the evidence offered by plaintiffs shows that their duties at the Deckers facility involved the incidental transportation or delivery of products interstate in an industry other than the transportation industry. (Hill v. Rent-A-Center, Inc. (11th Cir. 2005) 398 F.3d 1286, 1289-1290.) Therefore, applying the exemption available to transportation workers under the FAA to the circumstances present here based on evidence which at most demonstrates that some of the product handled by plaintiffs “happen[ed]” to cross state lines, would impermissibly broaden the exemption in a manner that would “allow [the] exception to swallow the general policy requiring the enforcement of arbitration agreements as pronounced in § 2 of the FAA.” (Id. at p. 1290.)

In addition, even though the FAA does not apply to an employee who qualifies as a “transportation worker,” the employee may still be required to arbitrate their dispute under California state law. (Palcko v. Airborne Express, Inc. (3d Cir. 2004) 372 F.3d 588, 595-596.) Under section 1281 of the California Arbitration Act, “[a] written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) The same analysis and reasoning further discussed above applies with respect to whether there exists a valid agreement to arbitrate the present dispute under the California Arbitration Act.

For all reasons discussed above, plaintiffs have failed to meet their burden to demonstrate that they were each “engaged” in the transportation of goods in commerce for purposes of meeting the standards under which the narrow exclusion for “transportation workers” provided in section 1 of the FAA would apply. Therefore, the mandatory arbitration provision of section 2 applies to the circumstances present here. (Circuit City, supra, 532 U.S. at p., 119; see also Cronus, supra, 35 Cal.4th at p. 386 [“any doubts or ambiguities as to the scope of the arbitration clause itself should be resolved in favor of arbitration”].)

Scope of the Arbitration Agreement:

Plaintiffs contend that they may maintain the entirety of their action in state court under the provisions of Labor Code sections 229 and 432.6. (See, e.g., Garcia v. Superior Court (2015) 236 Cal.App.4th 1138, 1146 [discussion of enforcement actions under the Labor Code to the extent claims are or are not exempt from the FAA].) For all reasons further discussed above, whether analyzed in the context of whether the aggregate economic activity of Deckers affected channels of interstate commerce or under choice-of-law principles further addressed above, the FAA applies to the Arbitration Agreement.

Generally, the FAA “ ‘pre-empts state laws which “require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” ’ [Citations.]” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 235 (Pinnacle).) Similarly, the FAA precludes the court from construing an agreement to arbitrate “in a manner different from that in which it otherwise construes nonarbitration agreements under state law.” (Perry v. Thomas (1987) 482 U.S. 483, 492 (Perry); see also Cronus, supra, 35 Cal.4th at p. 385 [“the FAA preempts all state laws that apply of their own force to limit those agreements against the parties’ will or to withdraw the power to enforce them”].)

To the extent plaintiffs allege claims under Labor Code sections 229 and 432.6 and to the extent either statute permits plaintiffs to maintain an action to enforce claims for due and unpaid wages or an action under FEHA without regard to the existence of an agreement to arbitrate, the provisions of these statutes discriminate against arbitration, and conflict with and are therefore generally pre-empted by the FAA. (Perry, supra, 482 U.S. at pp. 490-492; Pinnacle, supra, 55 Cal.4th at p. 235.)

However, whether or not the FAA pre-empts the provisions of Labor Code sections 229 and 432.6, plaintiffs also effectively contend that the Arbitration Agreement includes an exemption for claims which are non-arbitrable under state law. Available evidence shows that in the Arbitration Agreement, plaintiffs, Real Time and EmployBridge expressly agreed that ““[c]laims for unemployment compensation, claims under the National Labor Relations Act, claims under PAGA, claims for workers’ compensation benefits, administrative claims and any claim that is non-arbitrable under applicable state or federal law are not arbitrable under this [Arbitration] Agreement.” (Sanchez Decl., Exhs. 2, 4, 6, 8 at p. 1, ¶ 3; Exh. 3 at p. 1, ¶ 2; Exh. 10 at p. 1-2, ¶ 3.)

The principal purpose of the FAA “is to ensure that private arbitration agreements are enforced according to their terms….” (Volt, supra, 489 U.S. at p. 469 [also noting that “[a]rbitration under the Act in a matter of consent, not coercion, and the parties are generally free to structure their arbitration agreements as they see fit”].) Under the express provisions of the Arbitration Agreement further described above, the parties here have limited the issues which they will arbitrate in a manner that would exclude any claims alleged in the FAC that are not arbitrable under applicable California state law. (Ibid.)
 

Labor Code section 229 provides that “[a]ctions to enforce the provisions of this article for the collection of due and unpaid wages claimed by an individual may be maintained without regard to the existence of any private agreement to arbitrate.” (Lab. Code, § 229.) Plaintiffs assert in a general and conclusory manner that the FAC includes causes of action for unpaid wages. However, plaintiffs do not explain which, if any, causes of action include claims for unpaid wages under Labor Code section 200 et seq. Furthermore, Real Time and EmployBridge dispute that plaintiffs seek to recover due and unpaid wages within the meaning of Labor Code section 229 with respect to all causes of action alleged in the FAC, and asserts that only the twelfth cause of action for failure to timely pay wages is “arguably” subject to Labor Code section 229.

Notwithstanding plaintiffs’ failure to offer reasoned argument demonstrating that their FAC includes claims for due and unpaid wages, the Court notes that the only causes of action alleged in the FAC in which plaintiffs appear to seek the recovery of due and unpaid wages are the twelfth and thirteenth causes of action for, respectively, failure to timely pay wages during employment and failure to pay all wages due to discharged and quitting employees. (FAC at pp. 28-29.) The twelfth cause of action on its face is brought pursuant to Labor Code section 204, and the thirteenth cause of action is brought pursuant to Labor Code sections 201, 202, and 203. (Ibid.) As these causes of action seek to enforce the provisions of Labor Code section 200 et seq., they may be maintained without regard to the Arbitration Agreement under Labor Code section 229. Therefore, and for all reasons further discussed above, the claims alleged in the twelfth and thirteenth causes of action fall within the Arbitration Agreement’s express exclusion of claims which are not arbitrable under Labor Code section 229.

Labor Code section 432.6 provides that a “person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of [FEHA] or [the Labor] code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.” (Lab. Code, § 432.6, subd. (a).)

As further discussed above, available evidence and information presented in the Sanchez declaration shows that the Arbitration Agreement expressly states that the signing of that document is voluntary and not a condition of employment, and that plaintiffs could have either accepted or declined the Arbitration Agreement. (See, e.g., Sanchez Decl., ¶¶ 10, 16, 25, 32, 34 & Exhs. 2-4, 6, 8 & 10.) Therefore, the evidence is sufficient to demonstrate that Real Time and EmployBridge did not require plaintiffs to sign the Arbitration Agreement or to waive any right to file and pursue a civil action or complaint under FEHA or the Labor Code as a condition of plaintiffs’ employment or continued employment with Real Time, EmployBridge, or Deckers. For this reason, the provisions of Labor Code section 432.6 do not apply to the circumstances present here.

Other contract defenses:

Under the FAA, a written agreement to arbitrate a controversy “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract or as otherwise provided in chapter 4.” (9 U.S.C. § 2; Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889, 892 [contract defenses “grounded in state contract law[] may operate to invalidate arbitration agreements”].)

In their opposition to the motion, plaintiffs do not contend and offer no evidence, information, or reasoned argument to demonstrate that the Arbitration Agreement is unconscionable in any respect, or that any other general contract defenses apply to invalidate the Arbitration Agreement.

Arbitration of the claims alleged against Deckers:

Real Time and EmployBridge contend that plaintiffs are also required to arbitrate their claims against Deckers because the express terms of the Arbitration Agreement provide that it is intended to apply to the clients of Real Time which includes Deckers. With one exception, each version of the Arbitration Agreement attached to the Sanchez declaration provides that they are “intended to also apply to the Company’s clients” where employees “may be sent to work as explicit third-party beneficiaries” of the Arbitration Agreement.” (Sanchez Decl., Exhs. 2-4, 6, 8, & 10 at ¶ 1.)

The “emphatic federal policy in favor or arbitral dispute resolution” contained within the FAA “ ‘requires courts to enforce the bargain of the parties to arbitrate,’ [citation], and ‘cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement,’ [citation]….” (Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 631; KPMG LLP v. Cocchi (2011) 565 U.S. 18, 21.) “It is well established” under California law “that a nonsignatory beneficiary of an arbitration clause is entitled to require arbitration.” (Harris v. Superior Court (1986) 188 Cal.App.3d 475, 478.)

Though Deckers is not a signatory to the Arbitration Agreement, its terms expressly provide, and plaintiffs here do not dispute, that Deckers is a third party beneficiary to its provisions. Therefore, the undisputed evidence and information shows that Deckers may enforce the Arbitration Agreement. (Nguyen v. Tran (2007) 157 Cal.App.4th 1032, 1036 [an arbitration agreement may be enforced by a nonsignatory who is a third party beneficiary of the agreement].)

In addition, plaintiffs do not dispute that they each allege claims against Deckers which are intertwined with their employment relationship with Real Time and EmployBridge as well as the Arbitration Agreement signed by plaintiffs. (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 271 [noting that Federal courts look to the “‘relatedness of the parties, contracts, and controversies’” when determining whether a nonsignatory may invoke an arbitration clause].) Moreover, based on the circumstances present here, it would be inequitable to prevent Deckers from participating in arbitration of the same claims alleged against it, considering that plaintiffs do not appear to dispute that their claims against Deckers are rooted in plaintiffs’ employment relationship with Real Time and EmployBridge and arise from the same or effectively the same facts. (Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 787-788.)

For all reasons discussed above, the Court finds that Deckers is a third party beneficiary to the Arbitration Agreement and that the claims alleged by plaintiffs against Deckers in the first through eleventh and fourteenth through seventeenth causes of action of the FAC are subject to arbitration under the Arbitration Agreement.

Stay of the proceedings:

Real Time and EmployBridge request that the Court stay this action in its entirety until arbitration is had in accordance with the Court’s order. In their opposition to the motion, plaintiffs do not address the request to stay these proceedings and offer no reasoned argument demonstrating that a stay is not warranted. Accordingly, the Court will order this action stayed in its entirety, including the litigation of the claims alleged in the twelfth and thirteenth causes of action of the FAC, pending the resolution of all arbitrable claims. (9 U.S.C. § 3; see also Code Civ. Proc., § 1281.4.)

Evidentiary objections:

Real Time and EmployBridge assert written objections to evidence and information appearing in the declarations of Lewis-Seamster, Minnifield, and Huff. To determine the present motion, the Court considers only evidence that is admissible and relevant to the issues presented.

Proposed order submitted by Real Time and EmployBridge:

The Court has reviewed the proposed order submitted by Real Time and EmployBridge and does not intend to sign it. The Court will direct Real Time and EmployBridge to submit a corrected proposed order which accurately reflects the Court’s ruling herein.