Jose Antonio Santana Rubio v. Ritz-Carlton Hotel Company, LLC et al

Case Number

24CV04533

Case Type

Hearing Date / Time

Wed, 03/19/2025 - 10:00

Nature of Proceedings

Motion To Compel Arbitration and To Stay All Proceedings Pending Arbitration

Tentative Ruling

For Plaintiff Jose Antonio Santana Rubio: Kane Moon, Christopher L. Garcia, Ryan D. Handley, Moon Law Group, PC

                                   

For Defendants The Ritz-Carlton Hotel Company, L.L.C., Marriott International Administrative Services, Inc., and Luis De La Mora Sotelo: Jennifer S. McGeorge, Julie A. Bachert, Ford & Harrison LLP

                       

RULING

(1) For all reasons discussed herein, the motion of defendants The Ritz-Carlton Hotel Company, L.L.C., and Marriott International Administrative Services, Inc., to compel arbitration and stay all proceedings is continued to April 23, 2025. On or before April 7, 2025, plaintiff and defendants shall each file and serve all necessary declarations, together with certified or conformed copies of material pleadings and papers, as required by and in accordance with this ruling and the Superior Court of Santa Barbara County, Local Rules, rule 1308.

(2) For all reasons discussed herein, plaintiff is authorized to, on or before April 7, 2025, file and serve a supplemental brief, if any, responding to the new points and evidence raised in the reply and the supplemental declaration of Paul Bullock filed by defendants on March 12, 2025, as described in and accordance with this ruling. The parties shall not file any further papers supporting or opposing the motion of defendants to compel arbitration and stay all proceedings, apart from the supplemental brief described and authorized herein.

Background

On August 16, 2024, plaintiff Jose Antonio Santana Rubio (Rubio) filed in this action a complaint against defendants Ritz-Carlton Hotel Company, LLC (the Ritz), Marriott International Administrative Services, Inc. (Marriott), and Luis De La Mora Palmas (Palmas) (collectively, defendants). As alleged in the complaint:

In July 2015, defendants hired Rubio as a dish washer. (Compl., ¶ 8.) On April 12, 2022, Rubio’s doctor diagnosed Rubio with a hernia. (Id. at ¶ 9.) Rubio’s doctor scheduled Rubio for surgery the following day and placed Rubio on a medical leave of absence which was extended from time to time. (Ibid.) Rubio immediately informed defendants of his surgery. (Ibid.)

On May 11, 2022, Rubio fell and injured his pelvis. (Compl., ¶ 10.) Rubio immediately informed defendants of this injury and requested a medical leave of absence. (Ibid)

Rubio’s hernia and pelvis injury interfered with Rubio’s major life activities, including Rubio’s ability to work. (Compl., ¶ 18.)

In June 2022, Rubio noticed that defendants were no longer providing him with health insurance. (Compl., ¶ 11.) Rubio reached out to defendants to ask about the status of Rubio’s job and health insurance, and complained to Palmas that defendants were denying him health insurance and effectively firing him because of a disability. (Id. at ¶¶ 11-12.) Though defendants were initially responsive and told Rubio that they would investigate his complaints, defendants never followed up with Rubio and began to ignore Rubio entirely, effectively firing Rubio after nearly 7 years of service. (Id. at ¶¶ 13-14.)

Rubio believes that defendants terminated his employment in retaliation for being disabled, for attempting to take time off of work because of a medical condition, for Rubio’s medical leave of absence and requests for accommodation, and for his complaints of illegal activity. (Compl., ¶ 15.) Before terminating Rubio, defendants also failed to engage in a good faith interactive process with Rubio to determine effective reasonable accommodations, and failed to accommodate Rubio’s disability. (Id. at ¶¶ 16-17.)

In the complaint, Rubio alleges eleven causes of action: (1) disability discrimination in violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) (against the Ritz and Marriott); (2) failure to engage in a good faith interactive process in violation of the FEHA (against the Ritz and Marriott); (3) failure to accommodate in violation of the FEHA (against the Ritz and Marriott); (4) retaliation in violation of the FEHA (against the Ritz and Marriott); (5) failure to take all reasonable steps to prevent discrimination or retaliation in violation of the FEHA (against the Ritz and Marriott); (6) interference in violation of Government Code section 12945.2 (the California Family Rights Act or CFRA) (against the Ritz and Marriott); (7) retaliation in violation of the CFRA (against the Ritz and Marriott); (8) discrimination in violation of the CFRA (against the Ritz and Marriott); (9) violation of Labor Code section 1102.5 (against all defendants); (10) violation of Labor Code section 98.6 (against the Ritz and Marriott); and (11) wrongful termination in violation of public policy (against the Ritz and Marriott).

Court records reflect that on September 19, 2024, the Ritz and Marriott (collectively, the Hotel Defendants) filed a notice of removal of this case to the United States District Court for the Central District of California (the District Court). (See Oct. 22, 2024, District Court Order & Ltr. filed Oct. 30, 2024.) The Court’s records further reflect that, after removal, the case was ultimately assigned District Court case no. 2:24-cv-08042-SB-AS (the District Court Action). (Ibid. [attached docket sheet].)

The record also shows that on October 22, 2024, the District Court entered in the District Court Action an order remanding the case to this Court, based on lack of subject matter jurisdiction. (See Oct. 22, 2024, District Court Order & Ltr. filed Oct. 30, 2024.) The civil docket sheet for the District Court Action, a copy of which is attached to the District Court’s October 22, 2024, letter filed in this action on October 30, 2024, reflects, among other things, that on October 18, 2024, Rubio filed a first amended complaint (the FAC) in the District Court Action. (Ibid.)

After remand, and pursuant to a November 5, 2024, stipulation of the parties filed in this action on November 6, 2024, this Court entered an order on November 8, 2024, granting the Hotel Defendants an extension of time to file a response to Rubio’s complaint to December 2, 2024.

Pursuant to a November 14, 2024, second joint stipulation of the parties filed in this action on November 15, 2024, the Court an order on November 18, 2024, granting the Hotel Defendants an additional extension of time to file a response to the FAC to December 17, 2024.

On December 13, 2024, the Hotel Defendants filed a third joint stipulation (the third stipulation) in which the parties agreed that on December 12, 2024, counsel for the Hotel Defendants first learned that Rubio had “potentially” entered into an arbitration agreement with the Hotel Defendants. (See Dec. 13, 2024, Third Stip. At p. 4, ll. 12-13.) In addition, the parties agreed to extend the time for the Hotel Defendants to file a response to the FAC to January 16, 2025. (Ibid.)

On December 17, 2024, the Hotel Defendants filed an answer to the FAC, generally denying its allegations and asserting forty-eight affirmative defenses. A copy of the FAC filed by Rubio in the District Court Action is attached to the answer of the Hotel Defendants as exhibit A.

The FAC attached to the Hotel Defendants’ answer reflects that Rubio alleges in that pleading the same causes of action and factual matters detailed above, including, among others, the allegations set forth in paragraphs 8 through 18 of the complaint and described above. As further alleged by Rubio in the FAC:

In August 2020, Rubio’s doctor diagnosed Rubio with kidney failure which required dialysis three times a week. (FAC, ¶ 9.) Rubio did not need to take time off work to attend dialysis. (Ibid.) Rubio informed defendants of his kidney condition which also interfered with Rubio’s work and major life activities. (Id. at ¶¶ 9 & 21.)

As a result of the hernia diagnosis further detailed above, Rubio’s doctor placed Rubio on a medical leave of absence for approximately one month, of which Rubio informed defendants. (FAC, ¶ 10.) In addition, Rubio was hospitalized for approximately two weeks as a result of the May 11, 2022, fall described above, in which Rubio fell and fractured his pelvis. (Ibid.)

Rubio noticed that defendants were no longer providing him with health insurance within one month of sustaining the pelvis injury described above. (FAC, ¶ 12.) When Rubio attempted to speak to defendants’ Human Resources department to request information regarding Rubio’s employment and health insurance, Rubio was informed that he was no longer in defendants’ “system”. (Id. at ¶ 13.) Defendants began ignoring Rubio in June 2022. (Id. at ¶ 15.) When defendants cancelled Rubio’s health insurance and ignored Rubio’s requests to confirm his employment, Rubio understood that defendants were firing him. (Id. at ¶ 16.)

If defendants had provided Rubio with a medical leave of absence to accommodate Rubio’s disability, Rubio would have been able to return to work with or without restrictions, and able to perform the essential functions of his job. (FAC, ¶ 20.)

On January 24, 2025, the Hotel Defendants filed the present motion (the arbitration motion) for an order compelling Rubio to arbitrate this dispute, including the issue of arbitrability, and staying the litigation pending the outcome of the arbitration.

In support of the arbitration motion, the Hotel Defendants submit the declaration of Paul Bullock (Bullock), who states that he has been employed as the Director of Human Resources for the Ritz-Carlton Bacara (the Hotel) since September 10, 2022. (Bullock Decl., ¶ 1.) The Hotel is operated by the Ritz and located in Santa Barbara, California. (Ibid.) In his role as the Director of Human Resources, Bullock is responsible for interviewing and hiring new employees, reviewing all new hire paperwork, conducting training, and overall supervision of human resources matters and the employment-related policies and practices of the Hotel. (Id. at ¶ 2.)

Bullock declares that the Ritz is a luxury hotel chain with locations across the United States and in more than 30 countries, which serves and provides lodging to international and out of state business travelers and tourists. (Bullock Decl., ¶ 3.) The Ritz purchases supplies and goods, including linens, uniforms, cleaning supplies and equipment, maintenance equipment and parts, and food and beverage products, from outside of California. (Ibid.)

Bullock declares that Rubio began working as a Steward at the Hotel on September 8, 2017. (Bullock Decl., ¶ 4.) As part of the Hotel’s onboarding process, newly hired employees receive paperwork which includes an employee handbook and policies relating to timekeeping, meal and rest periods, attendance, and workplace injuries. (Ibid.) The Hotel also provides employees with a copy of an “Agreement to Arbitrate”, either during or after the onboarding process. (Ibid.) Bullock further states that copies of all paperwork signed by newly hired employees, including the “Agreement to Arbitrate”, are placed in the personnel files of the employees. (Ibid.)

Based on Bullock’s review of Rubio’s personnel file, Bullock declares that he obtained a copy of a document entitled “Acknowledgment of Agreement” which Bullock contends was signed by Rubio on November 23, 2017. (Bullock Decl., ¶ 4.) Bullock contends that in the Acknowledgment of Agreement, Rubio agreed to arbitrate certain disputes related to his employment at the Ritz. (Ibid.) A copy of the Acknowledgment of Agreement is attached to the Bullock declaration as exhibit A.

In addition, Bullock declares that as part of his job responsibilities, he has access to what Bullock describes as the current and historical “Arbitration Agreements” maintained by the Ritz. (Bullock Decl., ¶ 4.) Bullock attaches to his declaration as exhibit B, a copy of a document entitled “The Ritz-Carlton Employee Agreement” (the Employee Agreement), which Bullock contends is the Hotel’s April 2016 “Arbitration Agreement” which corresponds to the Acknowledgment of Agreement signed by Rubio on November 23, 2017, and further detailed above. (Id. at ¶ 4 & Exh. B.)

The Hotel Defendants also submit the declaration of their counsel, Julie A. Bachert (Bachert), who declares that on September 26, 2024, the District Court entered an order in the District Court Action requiring the parties to meet and confer as to whether Rubio’s claim against Palmas should be dismissed, and to resolve this matter in full. (Bachert Decl., ¶ 5.) Bachert further declares that the District Court ordered Rubio to, on or before October 4, 2024, either dismiss the claims against Palmas, or to file a noticed motion to remand to the extent Rubio believed he had a viable claim against Palmas. (Ibid.)

Bachert states that on October 4, 2024, Rubio filed in the District Court Action a motion to remand the case to state court, which was opposed by the Hotel Defendants. (Bachert Decl., ¶¶ 6 & 8.) In addition, on October 10, 2024, the Hotel Defendants filed in the District Court Action a motion to dismiss Rubio’s complaint, in response to which Rubio stated that he had filed the FAC, thereby mooting the motion to dismiss. (Id. at ¶¶ 7, 9-10, & 13.) Bachert contends that the District Court never heard or ruled on the Hotel Defendants’ motion to dismiss, remanded the action on October 22, 2024, as further discussed above, and deemed the motion to dismiss as moot. (Id. at ¶¶ 9, 11, & 14.)

Bachert asserts that the parties entered into the November 6, 2024, stipulation described above because, among other things, the Hotel Defendants anticipated that their response to the FAC was due on November 18, 2024, and Rubio’s counsel represented that he needed additional time to consider filing a second amended complaint. (Bachert Decl., ¶ 15.) Bachert further asserts that the parties filed the second joint stipulation on November 16, 2024, to allow Rubio additional time to consider filing a second amended complaint which would moot a potential demurrer to the FAC, and to allow the parties adequate time to meet and confer in advance of the Hotel Defendants filing a potential demurrer to the FAC. (Id. at ¶ 17.)

Bachert also states that on December 12, 2024, she informed Rubio’s counsel that “there was a potential arbitration agreement executed by [Rubio] during his employment.” (Bachert Decl., ¶ 19.) The parties agreed to extend the Hotel Defendants’ time to file a response to the FAC, and filed the third stipulation described above which, according to Bachert, was for the purpose of allowing, among other things, the Hotel Defendants additional time to analyze, and the parties time to meet and confer regarding, the potential arbitration agreement and allowing Rubio additional time to consider filing a second amended complaint. (Id. at ¶¶ 19-20.)

Bachert asserts that the Hotel Defendants filed an answer to the FAC to avoid a default because the Court had not yet entered an order as to the third stipulation. (Bachert Decl., ¶ 22.) Bachert declares that on the same date the Hotel Defendants filed their answer to the FAC, Bachert provided to Rubio’s counsel a copy of the Acknowledgment of Agreement and the April 2019 version of the Employee Agreement. (Id. at ¶ 23 & Exh. D.) According to Bachert, the first time Rubio stated that he would not agree to submit the dispute to arbitration was during a case management conference held in this matter on January 15, 2025. (Id. at ¶ 26.) On January 23, 2025, Bachert sent to Rubio’s counsel a copy of the April 2016 version of the Employee Agreement. (Id. at ¶ 29 & Exh. H.)

On March 12, 2025, Luis De La Mora Sotelo (Sotelo), who asserts that he was erroneously sued and served in this action as Palmas, filed a joinder in the arbitration motion.

The arbitration motion is opposed by Rubio. In support of his opposition, Rubio declares that he was employed with the Hotel Defendants from July 2015 through June 2022, and that Sotelo (who Rubio refers to as Palmas) was Rubio’s supervisor. (Rubio Decl., ¶ 2.) Rubio, who is a native Spanish speaker, declares that the Hotel Defendants knew that he had a limited ability to speak, read, or write in English. (Id. at ¶¶ 3-4.)

Rubio further declares that during his employment with the Hotel Defendants, he was forced to sign numerous documents that were in English, and that no Spanish translation of these documents was provided. (Rubio Decl., ¶ 5.) In addition, Rubio asserts that he did not have an opportunity to read or consult with an attorney concerning any documents during his employment with the Hotel Defendants. (Id. at ¶ 8.)

Rubio also states that he has reviewed the copies of the Acknowledgment of Agreement and Employee Agreement attached to the Bullock declaration. (Rubio Decl., ¶ 6.) Rubio declares that he does not remember, and never received a Spanish translation of, these documents. (Ibid.)

Rubio also declares that the Hotel Defendants and Sotelo never discussed with or explained to him arbitration or arbitration agreements, that Rubio did not understand what arbitration was until his counsel explained it to him, and that if the Hotel Defendants or Sotelo had explained what arbitration was, or if Rubio had been aware of the existence of an agreement to arbitrate, he would have never signed the documents. (Rubio Decl., ¶¶ 7 & 10.) According to Rubio, the Hotel Defendants and Sotelo also did not tell Rubio that there was an opt-out provision, that any arbitration agreement was voluntary, that any terms of an arbitration agreement were negotiable, or that Rubio could refuse to agree to arbitration. (Id. at ¶ 9.)

Rubio also submits the declaration of his counsel, Ryan D. Handley (Handley). Handley declares that on September 18, 2024, counsel for the Hotel Defendants transmitted to Handley a “meet and confer” email relating to a motion to dismiss. (Handley Decl., ¶ 3 & Exh. 1.) In addition, Handley asserts that the grounds for removal asserted by the Hotel Defendants include that Palmas was fraudulently joined as an individual defendant in order to deprive the District Court of diversity jurisdiction. (Id. at ¶ 4; see also Sept. 19, 2024, Notice of Removal, Exh. A at ¶¶ 13-24.) Handley states that on September 26, 2024, the District Court ordered, among other things, that Rubio either dismiss Palmas or file a motion for remand by October 4, 2024. (Id. at ¶ 5.) Following the parties’ meet and confer, Rubio filed a “remand to State Court” on October 4, 2024. (Id. at ¶¶ 6-7.)

Handley further asserts that on October 10, 2024, the Hotel Defendants filed in the District Court a motion to dismiss under rule 12(b)(6) of the Federal Rules of Civil Procedure (28 U.S.C.) (Handley Decl., ¶ 8.) In addition, on October 16, 2024, Handley engaged in meet and confer efforts with the Hotel Defendants’ counsel pursuant to rule 26(f) of the Federal Rules of Civil Procedure. (Ibid. & Exh. 2.)

Handley states that Rubio filed the FAC on October 18, 2024, in the District Court Action. (Handley Decl., ¶ 9.) After the case was remanded, counsel for the Hotel Defendants transmitted to Handley a letter regarding a demurrer to the FAC. (Id. at 11 & Exh. 3.)

Handley declares that the first time the Hotel Defendants’ counsel informed him of the existence of any arbitration agreement was on December 12, 2024. (Handley Decl., ¶ 12.) On December 23, 2024, Rubio served the Hotel Defendants with special interrogatories and request for production of documents, to which the Hotel Defendants responded on January 24, 2025. (Id. at ¶¶ 15-16 & Exhs. 6-7.)

Handley further notes that a job application produced by the Hotel Defendants shows that Rubio’s English ability is “beginner”. (Handley Decl., ¶ 14 & Exh. 5.)

The above summary is not intended to be exhaustive, and the Court considers all admissible evidence submitted in support of and in opposition to the arbitration motion.

Analysis

Notwithstanding whether or not the Acknowledgment of Agreement, either alone or in conjunction with the Employment Agreement, constitutes a valid and enforceable agreement to arbitrate the present dispute, or whether or not there exists a delegation clause requiring issues of arbitrability to be submitted to an arbitrator (and the Court presently makes no findings as to these matters), there exists some question as to whether or not the Hotel Defendants have waived their right to arbitrate. (See, e.g., Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 417-419 [general discussion under federal procedural rules]; Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 583-585 [same re state procedural rules].)

For reasons further discussed below, the Court requires, but does not presently have, an appropriate record on which it may determine the issue of waiver. Therefore, and for the reasons further discussed below, the Court will continue the hearing on the arbitration motion.

As a preliminary matter, the Hotel Defendants contend that, under the express terms of the Acknowledgment of Agreement, the Federal Arbitration Act, codified as chapter 1 of title 9 of the United States Code (the FAA), governs the arbitration at issue.

“[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.) “In 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.) 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; see also Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384 [“state contract rules generally govern the construction of arbitration agreements”].)

The Acknowledgment of Agreement includes a provision which states: “I understand that arbitration under this Agreement is governed by the [FAA].” (Bullock Decl., Exh. A [fifth paragraph].) The choice-of-law provision contained in the Acknowledgment of Agreement is unambiguous and demonstrates that, to the extent the Acknowledgment of Agreement constitutes a valid and enforceable agreement to arbitrate the present dispute, the parties intended that the FAA would govern the arbitration.

In his opposition to the motion, Rubio does not dispute that the Acknowledgment of Agreement includes an express provision that arbitration under that agreement is governed by the FAA. Rubio also offers no reasoned argument to show why the FAA does not govern arbitration under the Acknowledgment of Agreement, including by referring to other provisions within that document or the Employee Agreement, to show that the parties intended that any required arbitration would be governed in any respect by California law.

Additional undisputed evidence and information offered in the Bullock declaration is also sufficient to show that arbitration under the Acknowledgment of Agreement is subject to or governed by the FAA.

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.]”].)

The information and evidence offered in the Bullock declaration, which is not disputed or effectively disputed by Rubio, is sufficient to show that the Hotel Defendants’ aggregate economic activity represents a general practice which bears on interstate commerce. Rubio offers no reasoned factual or legal arguments showing that he was not working in, or engaging in activity that affected, interstate commerce with respect to Rubio’s duties at the Hotel. Rubio also has not provided any reasoned argument to show that the FAA does not apply to his employment with the Hotel Defendants. (Bernhardt v. Polygraphic Co. of America (1956) 350 U.S. 198, 200-201 [FAA governs if employee was “working ‘in’ commerce, was producing goods for commerce, or was engaging in activity that affected commerce”].Further, even if Rubio’s activities did not have a specific effect on interstate commerce, because the aggregate economic activity of the Hotel and the Hotel Defendants represents a general practice bearing on commerce, it is subject to federal control.

For all reasons further discussed above, the Hotel Defendants have met their burden to show that, to the extent any arbitration may be compelled under the Acknowledgment of Agreement, the arbitration is governed by the FAA.

In the arbitration motion, the Hotel Defendants assert that Rubio will argue that the Hotel Defendants have waived their right to arbitrate by removing this case to federal court, filing a motion to dismiss in the District Court Action (which the Hotel Defendants contend was mooted upon remand), and by filing an answer to the FAC in this Court. (Notice at p. 2, ll. 23-25.) The Hotel Defendants contend that their conduct in the District Court Action and in this action does not constitute a waiver of the right to arbitration, and that they have expressly asserted a right to arbitration, and an affirmative defense based on that right, in their answer to the FAC. (Id. at ll. 26 & p. 3, ll. 1-18; see also Memo. at p. 2, ll. 1-24.) For these reasons, the Hotel Defendants contend, they have not waived their right to arbitration. (Notice at p. 1, ll. 13.)

In his opposition to the arbitration motion, Rubio contends that, though the Hotel Defendants have been in possession of the Employee Agreement and the Acknowledgment of Agreement for over seven years, the Hotel Defendants removed the case to the District Court and filed a motion to dismiss in the District Court Action instead of moving to compel arbitration. Furthermore, Rubio argues, the removal of the case to federal court forced Rubio to litigate this matter and to file the FAC in the District Court Action in order to avoid the motion to dismiss filed by the Hotel Defendants. Rubio contends that this conduct by the Hotel Defendants is inconsistent with the right to arbitrate.

Rubio further asserts that, though counsel for the Hotel Defendants informed Rubio’s counsel in December 2024 that they had located an arbitration agreement, nothing in the information or evidence submitted with the arbitration motion shows when the Hotel Defendants discovered the Acknowledgment of Agreement. For these and all reasons further discussed above, Rubio contends, the Hotel Defendants have waived any right to compel arbitration of Rubio’s disputes.

Based on the points raised by the Hotel Defendants and Rubio and further discussed above, it appears to the Court that the motion to dismiss filed by the Hotel Defendants in the District Court Action and described in the parties’ respective moving and opposing papers is material to the issue of whether or not the Hotel Defendants waived their right to arbitration. It also appears that Rubio’s motion to remand, and the Hotel Defendants’ opposition to that motion, may be material to the waiver issue.

The Superior Court of Santa Barbara County, Local Rules, rule 1308, provides that “[d]ocuments filed in federal court after removal are not provided to the superior court. To complete the superior court’s file after remand, within 30 days of the filing of the order of remand, each party shall file a declaration describing the material pleadings that party filed in the federal action and the pertinent orders or rulings entered in the federal action. Certified or conformed copies of all such pleadings and papers shall be attached to the declaration.” (Super. Ct. Santa Barbara County, Local Rules, rule 1308.) (Note: Undesignated rule references shall be to the Local Rules of the Superior Court of Santa Barbara County unless otherwise indicated.)

Though the motion to dismiss filed by the Hotel Defendants in the District Court Action, and the papers supporting and opposing the motion to remand filed by Rubio, are or appear to be material to the issue of waiver raised in the arbitration motion and Rubio’s opposition to that motion, neither the declarations described in rule 1308, nor certified or conformed copies of these papers and pleadings, have been submitted by any party in compliance with rule 1308.

As the Court requires a complete and appropriate record on which to determine the issue of waiver raised by the parties in this proceeding, which must include all matters or filings that are or may be material to the issue, the Court will continue the hearing on the arbitration motion and order the Hotel Defendants and Rubio to, with respect to each material pleading or paper filed by each party in the District Court Action, file and serve the declaration described in rule 1308, together with certified or conformed copies of the Hotel Defendants’ motion to dismiss, Rubio’s motion to remand, the Hotel Defendants opposition to Rubio’s motion to remand, and any other pleadings or papers which are material to the waiver issue raised by the parties, in compliance with rule 1308.

In addition, in their reply to Rubio’s opposition to the arbitration motion, the Hotel Defendants contend that the issue of waiver must be determined by an arbitrator under what the Hotel Defendants contend is a delegation clause contained in the Employment Agreement. Though the Hotel Defendants raise the waiver issue in their opening memorandum, and additionally argue at length in that memorandum that there exists a delegation clause in the Employee Agreement which requires the Court to assign the issue of arbitrability to the arbitrator, wholly absent from the moving papers is any reasoned argument showing why the issue of waiver must, under the purported delegation clause, be assigned to an arbitrator irrespective of whether there exists a waiver of the right to arbitrate.

The Hotel Defendants also submit a supplemental declaration of Bullock in support of their reply, in which Bullock states that the Employee Agreement was not located in Rubio’s personnel file. (Supp. Bullock Decl., ¶ 2.) Instead, Bullock asserts, the Employee Agreement “is in the form of a pamphlet, is typically given to the employee as a matter of the Hotel’s practice, while the signed Acknowledgment of Agreement is placed in and kept in the employee’s personnel file (in this case, [Rubio’s] personnel file).” (Ibid.)

Bullock further states in his supplemental declaration that “[t]here was initially some difficulty in locating the April 2016 version of the [Employee] Agreement, which corresponds to the Acknowledgment of Agreement signed by [Rubio].” (Supp. Bullock Decl., ¶ 3.) Bullock also asserts that he and his colleague were able to locate a later version of the Employee Agreement (i.e., the April 2019 version) in December 2024, and that, after conducting a further search, Bullock was able to locate the April 2016 version of the Employee Agreement at issue in January 2025. (Id. at ¶ 3.)

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).) Further, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

The points raised in the Hotel Defendants’ reply papers with respect to whether the issue of waiver must be determined by an arbitrator under the purported delegation clause discussed at length in the moving papers, and the information provided in the supplemental Bullock declaration described above, constitute new points and evidence which the Hotel Defendants should have but failed to include in their moving papers. These new points and evidence are offered to shore up the Hotel Defendants’ arguments that a purported delegation clause requires the Court to assign all arbitrability issues to an arbitrator, and that they did not waive their right to arbitration. The gaps the Hotel Defendants seek to fill with the new matters and evidence offered in the reply papers and the supplemental Bullock declaration are gaps in the Hotel Defendants’ original arguments and evidence, and not gaps created by Rubio’s opposition to the motion.

Though the Court has discretion to decline consideration of the new evidence offered in the supplemental Bullock declaration and the new points raised for the first time in the Hotel Defendants’ reply memorandum, as the Court will continue the hearing, and in the interests of justice including concerns of due process, the Court will admit the supplemental Bullock declaration and consider the new points raised by the Hotel Defendants in reply after Rubio is provided the opportunity to rebut and counter these new points and evidence, including whether and to what extent the issue of waiver must be delegated to an arbitrator, if at all. (Jay, supra, 218 Cal.App.4th at p. 1538; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

For all reasons discussed above, the Court will authorize Rubio to submit a supplemental brief which may be directed only the new points and evidence raised in the reply of the Hotel Defendants and the supplemental Bullock declaration as further discussed above. As the Hotel Defendants raised the issue of waiver in their moving and reply papers, the Hotel Defendants have had an opportunity to fully address this issue, including in response to Rubio’s opposition. Therefore, the Hotel Defendants shall not be permitted to file a response to the supplemental brief of Rubio. In addition, nothing herein shall authorize any party to file additional papers in support of or in opposition to the arbitration motion apart from the supplemental brief described above.