Troy Becker vs Launch Technical Workforce Solutions LLC

Case Number

23CV05162

Case Type

Hearing Date / Time

Fri, 03/29/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons discussed herein, the motion of defendant to compel arbitration of plaintiff’s individual claims is granted in part. The individual claims alleged in plaintiff’s complaint under Labor Code section 2698 et seq. shall proceed to arbitration. The litigation shall be stayed pending the completion of arbitration. Except as otherwise herein granted, the motion of defendant is denied. Defendant shall submit a corrected proposed order that accurately reflects the court’s ruling herein.

Background:

On November 16, 2023, plaintiff Troy Becker filed his complaint against defendant Launch Technical Workforce Solutions, LLC (Launch), alleging two causes of action for penalties under Labor Code section 2698 et seq. (the Private Attorneys General Act of 2004 or PAGA). Plaintiff brings his claims on behalf of himself, the State of California, and all aggrieved employees who were or are employed by Launch and who were “paid on an hourly-plus-per-diem rate of pay during any workweek since one year and 65 days before the filing of [the] [c]omplaint until final resolution of the action….” (Compl., ¶¶ 1 & 28.) As alleged in the complaint:

Launch is a Florida limited liability company with headquarters in Houston, Texas. (Compl., ¶ 29.) Launch provides recruitment services to its clients in various industries throughout the country. (Compl., ¶ 33.) Launch recruits and sends workers to various sites in California to provide services to Launch’s clients. (Compl., ¶¶ 30, 33-34.)

Plaintiff worked for Launch as a Program Supervisor and A&P Mechanic in Victorville, California, from June 2022 through June 2023. (Compl., ¶¶ 20, 40.) Throughout plaintiff’s employment, Launch paid plaintiff on an hourly basis plus an hourly per diem amount. (Compl., ¶¶ 21, 35.)

Plaintiff worked more than 8 hours in a workday and occasionally worked more than 12 hours in a workday, and worked more than 40 hours in at least one workweek during the time period before plaintiff filed his complaint. (Compl., ¶¶46-48.) Launch classified plaintiff as non-exempt from overtime and did not include plaintiff’s hourly per diem payments into his regular rate for purposes of calculating overtime pay. (Compl., ¶¶ 4-7, 37, 42-44.)

Throughout plaintiff’s employment, Launch failed to provide plaintiff and other aggrieved employees with compliant meal and rest periods by requiring plaintiff and aggrieved employees to remain on-duty and perform compensable work, failed to timely provide accurate itemized wage statements, and failed to reimburse plaintiff and other aggrieved employees for necessary business expenditures including for plaintiff’s cell phone data plan and expenses related to plaintiff’s laptop that was necessarily used for work purposes. (Compl., ¶¶ 8-13 & 55-70.)

On January 9, 2024, Launch filed a motion for an order compelling plaintiff to arbitrate plaintiff’s individual claims under PAGA, to dismiss plaintiff’s individual PAGA claims, and to stay plaintiff’s representative claims under PAGA pending the outcome of the arbitration. Launch contends that plaintiff entered into a binding enforceable agreement to arbitrate any claims arising out of or related to his employment with Launch which also includes a waiver of representative claims.

In support of the motion, Launch submits the declaration of its counsel Seth Weisburst who declares that on December 13, 2023, he provided plaintiff’s counsel with a copy of an arbitration agreement purportedly signed by plaintiff and requested that plaintiff stipulate to arbitration of plaintiff’s individual PAGA claim and to a stay the representative action pending the outcome of the arbitration. (Weisburst Decl., ¶ 3.) In response, plaintiff’s counsel asserted that the arbitration agreement requires that plaintiff’s individual PAGA claim proceed in court. (Ibid.) The parties subsequently met and conferred by phone and email but could not reach an agreement. (Ibid.)

Launch also submits the declaration of its Senior Director of Human Resources & Operations, Natalie Nowicki, who declares that, based on Nowicki’s experience and responsibilities at and personal knowledge and review of the business records of Launch, she is “familiar with the agreements and practices discussed in [the Nowicki] declaration”. (Nowicki Decl., ¶ 2.)

Nowicki asserts that on November 29, 202, while employed with Launch, plaintiff signed a “Mutual Agreement to Arbitrate Employment-Related Claims” (the arbitration agreement). (Nowicki Decl., ¶ 4 & Exh. A.) The arbitration agreement was also signed by Jean Rollo who Nowicki identifies as the President and Chief Operating Officer of Launch. (Ibid.)

Attached to the Nowicki declaration is an email exchange in which, according to Nowicki, plaintiff forwarded a scan of the signed arbitration agreement to the Recruiting Team Manager at Launch, who then forwarded the arbitration agreement to two members of Nowicki’s Human Resources Team. (Nowicki Decl., ¶ 5 & Exh. B.) Nowicki states that, based on her review of Launch’s business records, plaintiff did not provide written notice of an intent to revoke his signature from the arbitration agreement within 30 days of the date plaintiff signed the arbitration agreement. (Id. at ¶ 6.)

Plaintiff opposes the motion.

Analysis:

(1) Applicability of the Federal Arbitration Act

Launch contends that the arbitration agreement is governed by the Federal Arbitration Act, codified at 9 United States Code section 1 et seq. (the FAA).

“[T]he FAA does not force parties to arbitrate … under any specific set of procedural rules [citation].” (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 385 (Cronus); see also Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 469 [parties may “specify by contract the rules under which the arbitration will be conducted”].) Therefore, “[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 v. Smyth (2010) 185 Cal.App.4th 153, 157 (Valencia).)

Whether an agreement to arbitrate incorporates the FAA’s procedural provisions “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 Medical Center v. Health Net of California, Inc. (2002) 101 Cal.App.4th 711, 722 (Mount Diablo); see also Cronus, supra, 35 Cal.4th at p. 384 [“state contract rules generally govern the construction of arbitration agreements”].)

Paragraph 1 of the arbitration agreement expressly states that the agreement “shall be governed by, construed, and enforced pursuant to the procedures and substantive provisions of the [FAA] to the exclusion of any state or local law inconsistent in any way with the FAA.” (Nowicki Decl., Exh. A at para. 1.)

“[T]he 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 (Victrola).) Under the circumstances present here, “the language of the [a]greement, not an analysis of interstate commerce, dictates the applicable law.” (Valencia, supra, 185 Cal.App.4th at p. 179.) The choice-of-law provision contained in the arbitration agreement is unambiguous and demonstrates that the parties intended that the FAA would govern. Plaintiff does not offer any information, evidence, or argument to demonstrate that the FAA does not apply to the arbitration agreement nor does plaintiff cite any provisions of the arbitration agreement or offer information to show that the parties intended that arbitration agreement would be governed in any respect by California law.

The plain and unambiguous meaning of the express choice-of-law provision appearing in the arbitration agreement and discussed above demonstrates that the parties adopted the FAA to govern the arbitration agreement and expressly and voluntarily agreed that its rules and procedures would apply. (Valencia, supra, 185 Cal.App.4th at pp. 162, 179-180.) Therefore, and for all reasons discussed above, the court finds that the arbitration agreement, including its enforcement, is governed by the FAA.

(2) Existence Of A Valid Agreement To Arbitrate The Present Controversy

The FAA also “does not force parties to arbitrate when they have not agreed to do so ….” (Cronus, supra, 35 Cal.4th at p. 385.) “If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exists.’ [Citations.]” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754 (Iyere); see also 9 U.S.C. § 4; Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130 [“[t]he court’s role under the [FAA] is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue”].)

“ ‘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, original italics.) Accordingly, “[u]nder 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.)

To determine whether the parties to a dispute have agreed to submit to arbitration, “ ‘we apply “general state-law principles of contract interpretation, while giving due regard to the federal policy in favor of arbitration by resolving ambiguities as to the scope of arbitration in favor of arbitration.” ’ [Citation.]” (Goldman, Sachs & Co. v. City of Reno (9th Cir. 2014) 747 F.3d 733, 742; see also Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701 [the “federal policy in favor of arbitration does not come into play, however, until a court has found the parties entered into a valid contract under state law”].)

“Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409-410, 413 (Rosenthal).)  “The arbitration proponent must first recite verbatim, or provide a copy of, the alleged agreement. [Citations.] A movant can bear this initial burden ‘by attaching a copy of the arbitration agreement purportedly bearing the opposing party’s signature.’ [Citation.] At this step, a movant need not ‘follow the normal procedures of document authentication’ and need only ‘allege the existence of an agreement and support the allegation as provided in [California Rules of Court,] rule [3.1330].’ [Citation.] 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….” (Iyere, supra, 87 Cal.App.5th at p. 755, original italics.)

Available information and evidence demonstrates that plaintiff signed the arbitration agreement on November 29, 2022. (See Nowicki Decl., Exh. A at p. 2.) Plaintiff does not offer any evidence or information to dispute that he signed the arbitration agreement on this date or that his signature is not authentic.

The arbitration agreement attached to the Nowicki declaration includes language providing that the parties agreed “to resolve all disputes arising out of or relating to … [plaintiff’s] employment with [Launch], or termination of my employment, by binding and final private arbitration in accordance with the provisions of” the arbitration agreement. (Nowicki Decl., Exh. A. at ¶ 1 [also providing that claims brought by either party are subject to arbitration].) The claims that plaintiff and Launch agreed to arbitrate are detailed in paragraph 2, and include, among others, “claims for wages, bonuses, or other compensation,” and claims for violation of any state law or statute that “governs any aspect of [Launch’s] and [plaintiff’s] employment relationship … [and] that can be arbitrated under applicable law….” (Id. at ¶ 2.) The arbitration agreement further provides that “any claim [plaintiff] may believe [plaintiff] has under the California Labor Code, including … claims for overtime, unpaid wages, and claims involving meal and rest periods shall be … subject to the terms of” the arbitration agreement. (Ibid.)

Paragraph 2 of the arbitration agreement expressly excludes specific claims to which the arbitration agreement does not apply. (See Nowicki Decl., Exh. A at ¶ 2.) These claims include claims for workers’ compensation or unemployment compensation benefits, various claims that may be brought under specific federal statutes or before certain administrative agencies, and any claims that “the [p]arties cannot be compelled to arbitrate under applicable federal, state or local law.” (Ibid.) Paragraph 2 does not by its express terms reference or exclude claims brought under PAGA.

The arbitration agreement also includes a paragraph titled “Waiver Of Class, Collective, And Representative Actions Claims” (the PAGA provision) which provides that plaintiff and Launch “may only bring claims against the other party in an individual capacity in arbitration, and not as a plaintiff … in any putative … representative proceeding.” (Nowicki Decl., Exh. A. at ¶ 5.) The PAGA provision further provides that “[u]nder no circumstances do the [p]arties agree to proceed with arbitration of … representative claims”, and that if the PAGA provision is unenforceable, “the matter shall proceed in a court of competent jurisdiction.” (Ibid.)

A separate paragraph entitled “California PAGA Claims” appearing in the PAGA provision states that any action brought under PAGA “must be brought on an individual basis in arbitration, and not as a plaintiff in court.” (Nowicki Decl., Exh. A. at ¶ 5.) The language of this separate paragraph further provides that, to the extent any portion of the PAGA provision is unenforceable or unlawful, “it will be stricken and severed” from the arbitration agreement and the “PAGA action must be brought in court, not arbitration.” (Ibid.) This separate paragraph further states that “under no circumstances will any PAGA claim proceed in arbitration on any basis other than individual.” (Ibid.)

Based on the provisions discussed above, Launch has sufficiently alleged the existence of an agreement to arbitrate the present dispute brought under PAGA, by attaching to the motion a copy of the arbitration agreement bearing plaintiff’s signature and by reciting the relevant provisions of the arbitration agreement that provide for arbitration of the claims alleged in the complaint. (Cal. Rules of Court, rule 3.1330; see also Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) Therefore, Launch has met its initial prima facie burden to provide evidence of a written agreement to arbitrate individual PAGA claims alleged in the complaint.

The burden now shifts to plaintiff to identify a factual dispute as to the existence of the arbitration agreement and to produce evidence to challenge the authenticity of the agreement. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)

Plaintiff does not identify a dispute with regard to the existence of the arbitration agreement or whether plaintiff is bound by its provisions. Plaintiff, however, contends that PAGA claims such as those alleged by plaintiff in the present action are expressly carved out from the arbitration agreement. For this reason, plaintiff effectively contends that there does not exist a valid agreement to arbitrate plaintiff’s PAGA claims.

“The party opposing arbitration has the burden of demonstrating that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Rice v. Downs (2016) 248 Cal.App.4th 175, 185, 203 Cal.Rptr.3d 555.) To support his interpretation of the arbitration agreement, plaintiff relies on the following language which appears in the separate paragraph entitled “California PAGA claims” further discussed above: “[t]he [p]arties recognize that the law on arbitrating PAGA claims may be unsettled and agree that if any portion of this [p]aragraph is found to be unenforceable or unlawful for any reason , then it will be stricken and severed from this [arbitration] [a]greement, and any PAGA action must be brought in court, not arbitration.” (Nowicki Decl., Exh. A at ¶ 5.) Plaintiff characterizes this language as a “carve out” provision which requires all claims under PAGA to be brought in court to the extent the PAGA provision is unenforceable. (See Opp. at p. 3.)

Plaintiff further contends that, because the PAGA provision includes terms which waive plaintiff’s right to seek civil penalties on behalf of other aggrieved employees under PAGA, it is unenforceable. As a result, plaintiff further argues, the carve-out provision is triggered requiring the entirety of the present action to be brought in court. For this reason, plaintiff contends that the court may not compel plaintiff to arbitrate his claims.

Launch does not appear to dispute plaintiff’s contention that, to the extent the PAGA provision includes a wholesale waiver of plaintiff’s right to bring non-individual PAGA claims in any forum, any such waiver is unenforceable. (See also Seifu v. Lyft, Inc. (2023) 89 Cal.App.5th 1129, 1138-1139.) Rather, Launch contends that plaintiff’s interpretation is based only on portions of the PAGA provision and ignores other language requiring individual PAGA claims to proceed to arbitration notwithstanding whether the waiver of representative claims is unenforceable. For this reason, Launch argues, plaintiff’s interpretation is out of context and defeats the clear purpose of the arbitration agreement which, according to Launch, expressly requires arbitration of individual PAGA claims.

Launch further asserts that the arbitration agreement includes an express list of excluded claims which does not identify claims brought under PAGA. For this additional reason, Launch argues, the arbitration agreement expressly encompasses the individual PAGA claims alleged by plaintiff in this matter and requires the court to compel arbitration of those claims.

Under the fundamental rules of contract interpretation, “the mutual intention of the parties at the time the contract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ [citation], controls judicial interpretation. [Citation.]” (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822.) A contract provision “will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. [Citation.] But language in a contract must be interpreted as a whole, and in the circumstances of the case, and cannot be found to be ambiguous in the abstract. [Citation.] Courts will not strain to create an ambiguity where none exists. [Citation.]” (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18-19.)

By its express terms, the PAGA provision requires that the parties bring claims only in an individual capacity. (Nowicki Decl., ¶ 5.) The PAGA provision does not require or contemplate that the parties waive individual claims, including those asserted under PAGA. (Ibid.) The express language of the PAGA provision also provides that PAGA claims may be brought on an individual basis “in arbitration, and not as a plaintiff in court.” (Ibid.)

In addition, the waiver appearing in the PAGA provision clearly and expressly refers to representative claims brought under PAGA. The carve-out provision cited by plaintiff effectively provides that if the waiver of claims is found to be unenforceable, then “the matter” or “action” must be brought in court. Interpreting the entirety of the PAGA provision in its ordinary sense and as a whole, including the carve-out provision relied on by plaintiff, the terms “matter” or “action” clearly refer to the waived representative claims, to the extent the waiver of those claims is unenforceable.

In addition, the language of the arbitration agreement read as a whole clearly and explicitly evidences an intent that all claims for wages or other compensation and for violation of any state law, including individual claims brought pursuant to PAGA, be submitted to arbitration. It can be inferred from this and other unambiguous language appearing in the arbitration agreement as a whole that the parties intended that only representative claims that the parties agreed to waive under the terms of the arbitration agreement, and not individual claims, would proceed in court to the extent the waiver is unenforceable. For these reasons, the court finds that the arbitration agreement requires individual claims brought under PAGA to proceed to arbitration. (See, e.g., Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1119, 1123 (Adolph) [agreements to arbitrate a PAGA individual claim must be enforced if the agreement is covered by the FAA])

With respect to language in the PAGA provision setting forth the parties’ recognition that the law with respect to arbitration of PAGA claims is “unsettled” as further discussed above, the court notes that the parties signed the arbitration agreement before the Supreme Court of California issued its decision in Adolph. In Adolph, the court held that an order compelling arbitration of individual claims under PAGA does not strip the plaintiff of standing to litigate non-individual claims in court. (See Adolph, supra, 14 Cal.5th at p. 1114.) Under the circumstances present here, it can be reasonably inferred that the parties intended that the arbitration agreement would comply with the holding in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 663, pending issuance of a final ruling in Adolph.

In addition, as the arbitration agreement is governed by the FAA, to the extent there exists any ambiguity as to whether both individual and representative claims brought under PAGA must proceed in court to the extent that any waiver of the representative claims is unenforceable, any such ambiguity must be resolved in favor of binding arbitration. (Western Bagel Company, Inc. v. Superior Court of Los Angeles County (2021) 66 Cal.App.5th 649, 665-666.)

The language of the arbitration agreement and PAGA provision, interpreted in their ordinary sense, are each expressly designed to mandate arbitration of individual claims brought under PAGA for all reasons discussed above. The PAGA provision also accounts for circumstances under which the waiver of representative claims would be unenforceable, requiring those claims to proceed in court. For this reason, the arbitration agreement is susceptible to an interpretation that requires arbitration of plaintiff’s individual PAGA claims while permitting representative PAGA claims to proceed in court to the extent the waiver of those claims is unenforceable. (Victrola, supra, 46 Cal.App.5th at pp. 355-356 [courts should order arbitration unless arbitration provision is not susceptible of an interpretation that covers the asserted dispute].) Therefore, for all reasons further discussed above, the court finds that Launch has met its burden to show, by a preponderance of the evidence, the existence of a valid agreement to arbitrate the individual PAGA claims alleged in plaintiff’s complaint.

A written agreement to submit a controversy to arbitration “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.” (9 U.S.C. § 2.) “[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2.” (Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687; accord, OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (OTO).) If a party opposing a petition to compel arbitration raises a defense to enforcement, “that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal, supra, 14 Cal.4th at p. 413.)

Plaintiff does not contend that the arbitration agreement is procedurally or substantively unconscionable. In addition, plaintiff offers no factual or legal argument demonstrating that the arbitration agreement is procedurally or substantively unconscionable. Therefore, plaintiff has not met his burden to demonstrate that the arbitration agreement is in any respects unconscionable.

“The FAA gives the courts no discretion to refuse to order arbitration that has been agreed to by the parties.” (Mount Diablo, supra, 101 Cal.App.4th at p. 718.) For all reasons discussed above, the court finds that a valid agreement to arbitrate exists which encompasses the dispute and controversy at issue in the present matter. Considering the totality of all information and evidence presented by the parties, plaintiff has not met his burden to demonstrate that the arbitration agreement is sufficiently unfair or unconscionable such that the court may not enforce it. Therefore, the court will grant the motion of Launch to the extent it seeks an order compelling arbitration of plaintiff’s individual PAGA claims.

Launch requests that the court stay plaintiff’s representative PAGA claims pending the outcome of the arbitration and dismiss plaintiff’s individual PAGA claims from the litigation. The court has considered plaintiff’s arguments in opposition to the request by Launch to stay the litigation of plaintiff’s non-individual or representative claims pending completion of the arbitration and does not find them to be persuasive. (See Adolph, supra, 14 Cal.5th at p. 1125; 9 U.S.C. § 3; Code Civ. Proc., § 1281.4.) Therefore, the court will grant the motion to the extent it requests a stay of the litigation pending completion of the arbitration ordered herein.

Launch offers no reasoned argument to support its request for an order dismissing plaintiff’s individual PAGA claims. “The purpose of the statutory stay is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved.” (Federal Ins. Co. v. Superior Court (Mackey) (1998) 60 Cal.App.4th 1370, 1374 [also noting that during arbitration, the court retains “vestigial jurisdiction” over matters submitted to arbitration].) As the stay ordered herein is intended to preserve the status quo pending resolution by arbitration of plaintiff’s individual PAGA claims, the court will deny the motion to the extent it requests an order dismissing plaintiff’s individual claims.

The court has reviewed the proposed order submitted by Launch. The order includes a dismissal of plaintiff’s individual PAGA claims. Therefore, the court does not intend to sign the proposed order submitted by Launch. The court will order Launch to submit a corrected proposed order that accurately reflects the court’s ruling herein.