Filed 11/16/22 Ramirez v. Real Time Staffing Services CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARIA RAMIREZ, B313232
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC715058)
v.
REAL TIME STAFFING
SERVICES, LLC et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel J. Buckley, Judge. Affirmed.
Gutierrez Law Group, Rolando Gutierrez; Matthew J. Kita;
Arias Sanguinetti Wang & Torrijos, Mike Arias, Craig S. Momita
and Robert M. Partain for Plaintiff and Appellant.
CDF Labor Law, David G. Hagopian, Robyn E. Frick and
Jeffrey Sikkema for Real Time Staffing Services, LLC.
Krieger & Krieger and Lawrence R. Cagney for Defendant
and Respondent Cosway Company, Inc.
______________________________
Maria Ramirez filed a putative class action lawsuit against
Real Time Staffing Services, LLC1 and Cosway Company, Inc.,
alleging violations of Labor Code wage-and-hour provisions and a
cause of action for unfair business practices. The trial court
granted Real Time and Cosway’s motion to compel Ramirez to
arbitrate her individual claims, dismissed the class allegations
without prejudice and stayed the superior court proceedings
pending resolution of arbitration.
On appeal (under the death knell doctrine) Ramirez argues
the arbitration agreement signed by Ramirez as part of her
application for employment is unenforceable for lack of
consideration and the court erred in dismissing the class
allegations because the arbitration agreement, concededly
governed by the Federal Arbitration Act (FAA) (9 U.S.C.
§ 1 et seq.), contained no class action waiver. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ramirez applied for employment with Real Time, a staffing
agency, on January 24, 2012. Real Time placed Ramirez with
Cosway, a manufacturer of personal care products for nationwide
distribution, in September 2012, where Ramirez worked on the
production line until September 2015.
1 Ramirez’s complaint named as defendants both Real Time
Staffing Services, Inc. and Real Time Staffing Services, LLC.
Real Time converted from a corporation to a limited liability
company on May 12, 2014, more than four years before Ramirez
filed her initial complaint.
2
Ramirez filed her initial complaint on July 24, 2018 and on
December 7, 2018 the operative first amended complaint, alleging
wage-and-hour causes of action against Real Time and Cosway,
as her joint employers, for failure to pay overtime and double
time compensation, to provide meal and rest periods and to
provide accurate itemized wage statements and also alleging
causes of action for Labor Code waiting time penalties and unfair
competition and unlawful business practices. Ramirez asserted
her claims as an individual and on behalf of a class consisting of
all current and former nonexempt employees who worked or had
worked for Real Time or Cosway at any time from July 23, 2014
to the present.
1. The Motion To Compel Arbitration
Real Time and Cosway on August 31, 2020 moved to
compel arbitration of Ramirez’s individual claims, to dismiss the
putative class claims and to stay the action pending arbitration.
In their motion they argued Ramirez agreed to arbitrate all of her
employment claims with Real Time and, through agency
principles, with Cosway when she applied for employment in
January 2012. The arbitration agreement, they asserted, was
covered by the FAA, as expressly recited in the agreement and by
virtue of Cosway’s national distribution of the products it
manufactured and was neither substantively nor procedurally
unconscionable. They also argued under well-established case
law concerning the FAA, an employer cannot be compelled to
arbitrate claims on a classwide basis absent an express
agreement to do so, citing, among other cases, Lamps Plus, Inc. v.
Varela (2019) 587 U.S. ___ [139 S.Ct. 1407, 1412, 1417-1419],
which held that a court may not compel class arbitration when
the arbitration agreement does not expressly provide for such
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arbitration and that ambiguity does not constitute consent to
arbitrate class claims.
The Mutual Arbitration Agreement (Acuerdo Mutuo Para
Arbitrar) initialed and signed by Ramirez stated, translated from
Ramirez’s Spanish-language form, “In the event the Employer
and I are unable to informally resolve any dispute, I agree for the
dispute to be filed and settled by final and binding arbitration in
accordance with the procedures of the Federal Arbitration Act
and the California Arbitration Act (California Civil Procedure
Code Sec. 1280, et seq.), including section 1283.05 and discovery
rights. Such disputes may include but are not limited to any
breach of contract, fraud, misrepresentation, defamation,
personal damages, salary, wrongful termination, vacation pay,
sick pay, overtime pay, implied federal and state employment
rules, . . . [and] state laws regarding unfair competition or unfair
business practices . . . . I agree to have the arbitration held in
Santa Barbara, CA.”2
2 Real Time’s associate policy handbook, which Ramirez
acknowledged receiving, also contained an agreement to arbitrate
“any dispute between the Employer and I relating to or arising
out of, or related to my employment or termination of my
employment.” The arbitration provision in the handbook also
contained a purported express waiver of the employee’s “right to
bring or join any type of collective or class claim in arbitration, in
any court, or in any other forum.” Real Time and Cosway did not
base their motion to compel arbitration on the provision in the
handbook and advised the trial court they were relying solely on
the separate Mutual Arbitration Agreement initialed and signed
by Ramirez as part of her employment application, explaining,
“The handbook merely serves as a reminder that Plaintiff was
aware of her agreement to arbitrate with Real Time.”
4
2. Ramirez’s Opposition to the Motion
In her opposition to the motion to compel arbitration and
dismiss class claims, Ramirez argued no valid arbitration
agreement had been formed because the parties to be bound by
the agreement could not be identified (the “Employer”
purportedly subject to the agreement was not specified) and
because the agreement lacked consideration (the promise to
arbitrate was not mutual). As to the second point, Ramirez
emphasized that, although the heading referred to a mutual
agreement to arbitrate, the provision itself only stated, “I agree.”
Ramirez also argued the agreement was unconscionable
and, therefore, unenforceable. She again identified ambiguity
and lack of mutuality as grounds for finding substantive
unconscionability; contended Santa Barbara was an
unreasonable forum; and asserted, as establishing procedural
unconscionability, she had been denied any meaningful
opportunity to review the arbitration agreement before being
pressured to complete her application and sign the documents
she had been handed.
Ramirez’s opposition memorandum did not address Real
Time and Cosway’s argument that her claims on behalf of current
and former employees could not be arbitrated.
3. The Order Granting the Motion
After taking the matter under submission following receipt
of a reply memorandum from Real Time and Cosway and oral
argument from the parties, the trial court on April 7, 2021
granted the motion to compel arbitration after severing the
provision requiring the arbitration to take place in Santa
Barbara. (Real Time and Cosway had conceded in their reply
memorandum that they were willing to arbitrate in the greater
5
Los Angeles area.) Citing AT&T Mobility LLC v. Concepcion
(2011) 563 U.S. 333, 346-348, but without further discussion in
its minute order, the court struck the class allegations. Pursuant
to Code of Civil Procedure section 1281.4 the court stayed the
case pending resolution of arbitration. At the request of Ramirez,
the court subsequently clarified that its order striking the class
allegations was without prejudice.3
4. Ramirez’s Death Knell Appeal
Ramirez filed a notice of appeal within 60 days of the
court’s April 7, 2021 ruling. Real Time moved to dismiss the
appeal, joined by Cosway, arguing an order compelling
arbitration is nonappealable. Ramirez filed an opposition,
contending the order striking the class allegations was
immediately appealable under the death knell doctrine and the
simultaneously issued and closely related order compelling
arbitration was, as a consequence, appealable as well, citing
several cases for that proposition, including Franco v. Athens
Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, 1288 (an order to
arbitrate individual claims is appealable if it constitutes the
“death knell” for class litigation). (But see Nixon v. AmeriHome
Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 943 [“[i]t is far
from certain whether the judicially created death knell exception
to the one final judgment rule for an order dismissing class
3 In an April 28, 2021 message to counsel on
caseanywhere.com under the title “tomorrow’s status conference,”
the trial judge stated, “In your joint statement, you asked if the
ruling to strike the class action allegations is with or without
prejudice. It is without prejudice. We can discuss tomorrow.”
The record on appeal does not include any order or reporter’s
transcript from a status conference on April 29, 2021.
6
claims extends to make appealable an otherwise nonappealable
order compelling arbitration when the two orders are issued
simultaneously”].) We denied the motion to dismiss.4
DISCUSSION
1. Governing Law and Standard of Review
Code of Civil Procedure section 1281.2 requires the
superior court to order arbitration of a controversy “[o]n petition
of a party to an arbitration agreement alleging the existence of a
written agreement to arbitrate a controversy and that a party to
the agreement refuses to arbitrate such controversy . . . if it
determines that an agreement to arbitrate the controversy
exists.” As the language of this section makes plain, the
threshold question presented by every petition to compel
arbitration is whether an agreement to arbitrate exists.
(American Express Co. v. Italian Colors Restaurant (2013)
570 U.S. 228 [it is an “overarching principle that arbitration is a
matter of contract”]; Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236
(Pinnacle) [“‘“a party cannot be required to submit to arbitration
any dispute which he [or she] has not agreed so to submit”’”];
Gordon v. Atria Management Co., LLC (2021) 70 Cal.App.5th
1020, 1026 [“California has a strong public policy in favor of
arbitration, but ‘“a party cannot be compelled to arbitrate a
dispute that [he or she] has not agreed to resolve by
arbitration”’”].)
4 Real Time in its respondent’s brief stated it did not
challenge appealability based on the death knell doctrine, and
Cosway joined in that brief.
7
The party seeking to compel arbitration bears the burden of
proving by a preponderance of the evidence an agreement to
arbitrate a dispute exists. (Pinnacle, supra, 55 Cal.4th at p. 236;
Rosenthal v. Great Western Fin. Securities Corp. (1996)
14 Cal.4th 394, 413; Nixon v. AmeriHome Mortgage Co., LLC,
supra, 67 Cal.App.5th at p. 946.) To carry this burden of
persuasion the moving party must first produce “prima facie
evidence of a written agreement to arbitrate the controversy.”
(Rosenthal, at p. 413; accord, Gamboa v. Northeast Community
Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) “If the moving
party meets its initial prima facie burden and the opposing party
disputes the agreement, then . . . the opposing party bears the
burden of producing evidence to challenge the authenticity of the
agreement.” (Gamboa, at p. 165; accord, Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal, at
p. 413.) If the opposing party produces such evidence, then “the
moving party must establish with admissible evidence a valid
arbitration agreement between the parties.” (Gamboa, at p. 165.)
“Despite the shifting burden of production, ‘[t]he burden of
proving the agreement by a preponderance of the evidence
remains with the moving party.’” (Trinity v. Life Ins. Co. of North
America (2022) 78 Cal.App.5th 1111, 1120 (Trinity);
see Rosenthal, at p. 413.)
Absent conflicting evidence, we review de novo the trial
court’s interpretation of an arbitration agreement. (Rosenthal v.
Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 413;
Trinity, supra, 78 Cal.App.5th at p. 1120; Nyulassy v. Lockheed
Martin Corp. (2004) 120 Cal.App.4th 1267, 1277.) Where the
trial court’s ruling is based on a finding of fact, we review the
decision for substantial evidence. (Gamboa, supra,
8
72 Cal.App.5th at p. 166; Fabian v. Renovate America, Inc. (2019)
42 Cal.App.5th 1062, 1066.) Under this deferential standard,
“‘all factual matters will be viewed most favorably to the
prevailing party [citations] and in support of the judgment.’”
(Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60;
accord, Western States Petroleum Assn. v. Superior Court (1995)
9 Cal.4th 559, 571; see Nissan Motor Acceptance Cases (2021)
63 Cal.App.5th 793, 818 [“We must not review the evidence to
determine whether substantial evidence supports the losing
party’s version of the evidence. Instead, we must determine if
there is any substantial evidence, contradicted or uncontradicted,
to support the trial court’s findings”].)
2. Adequate Consideration Supports the Mutual
Arbitration Agreement
Abandoning the arguments concerning unconscionability
she advanced in the trial court, Ramirez on appeal contends only
that the Mutual Arbitration Agreement is unenforceable because
it lacked consideration. In support of this argument,
emphasizing the agreement states “I agree,” rather than “we
agree,” and was not signed on behalf of “Employer,” Ramirez
asserts Real Time did not promise to arbitrate disputes and,
accordingly, there was no mutuality of obligation necessary to
constitute valid consideration. (See, e.g., Bleecher v. Conte (1981)
29 Cal.3d 345, 350 [“A bilateral contract is one in which there are
mutual promises given in consideration of each other.
[Citations.] The promises of each party must be legally binding
in order for them to be deemed consideration for each other”];
Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010)
188 Cal.App.4th 401, 421-422 [“‘[a]n agreement is illusory and
9
there is no valid contract when one of the parties assumes no
obligation’”].)
Ramirez’s argument is fundamentally flawed. As Ramirez
explained in her declaration in opposition to the motion to compel
arbitration, she initialed and signed the Spanish-language
version of the Mutual Arbitration Agreement as part of the
employment application package with Real Time: “After
completing the initial application, I was directed to a young lady’s
desk to initial and sign a packet of forms. . . . [¶] . . . When I
inquired about the forms, this young lady only instructed me that
I needed to sign them before I can begin working. While sitting
at her desk, this young lady indicated on the forms where I had
to initial and sign.” That is, in return for Ramirez agreeing to
arbitrate employment-related disputes, Real Time offered her a
job. Whether or not Real Time also agreed to arbitrate disputes
with Ramirez, the offer of employment, which Ramirez accepted,
was adequate consideration for Ramirez’s promise to do so. (Civ.
Code, § 1605 [“[a]ny benefit conferred, or agreed to be conferred,
upon the promisor, by any other person, to which the promisor is
not lawfully entitled . . . is a good consideration for a promise”];
cf. Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 14 [offer of
continuing employment provides consideration for modification of
the conditions of employment]; Harris v. TAP Worldwide,
LLC (2016) 248 Cal.App.4th 373, 384 [“[p]laintiff cannot have it
both ways, acceptance of the at-will job offer with all its
emoluments and no responsibility to abide by one of its express
conditions”].)
To be sure, if the Mutual Arbitration Agreement, despite its
title, actually created only a unilateral obligation requiring
Ramirez, but not Real Time, to arbitrate employment-related
10
disputes, that lack of mutuality, together with the arguably
adhesive nature of the agreement as described by Ramirez, would
be factors in determining whether the agreement to arbitrate was
unenforceable as procedurally and substantively unconscionable.
(See generally Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83, 120 [“an arbitration
agreement imposed in an adhesive context lacks basic fairness
and mutuality if it requires one contracting party, but not the
other, to arbitrate all claims arising out of the same transaction
or occurrence or series of transactions or occurrences”].) But
Ramirez on appeal expressly disclaimed any challenge to the
arbitration agreement as unconscionable and even purported to
distinguish cases addressing mutuality and “I agree” language in
arbitration agreements, including this court’s decision in Roman
v. Superior Court (2009) 172 Cal.App.4th 1462 (Roman), as
inapposite because they addressed the issue of unconscionability,
not consideration.
In any event, the Mutual Arbitration Agreement, as its title
denoted, was bilateral notwithstanding its use of the “I agree”
language emphasized by Ramirez. We considered a similar issue
in Roman, supra, 172 Cal.App.4th 1462, which the trial court
cited for our holding that the use of “I hereby agree” did not
vitiate an otherwise bilateral obligation to arbitrate “‘all disputes
and claims that might arise out of my employment.’” (Id. at
pp. 1466-1467, 1471.) We held in Roman the “I hereby agree”
language at most created an ambiguity that, under ordinary
rules of contract interpretation and in light of the public policy
favoring arbitration and the agreement’s explicit reference to
mandatory arbitration of “all disputes,” was best understood to
mean that both parties were bound to arbitrate any disputes.
11
(Id. at pp. 1472-1473; see McManus v. CIBC World Markets
Corp. (2003) 109 Cal.App.4th 76, 100 [agreement to arbitrate
“‘[a]ll disputes arising out of your employment’” created mutual
obligation to arbitrate].)
Like the arbitration agreement in Roman, and unlike the
agreement in Serpa v. California Surety Investigations, Inc.
(2013) 215 Cal.App.4th 695, 705, which on its face required the
employee to submit to arbitration “any such dispute[s]” involving
her employment without imposing a similar obligation on the
employer,5 the agreement initialed and signed by Ramirez
required arbitration of “any dispute” and specifically included
within the scope of arbitration claims for breach of contract, fraud
and defamation—causes of action that could be pursued by Real
Time, as well as one of its employees.
Moreover, we properly look to the circumstances under
which an agreement was made when interpreting it. (Civ. Code,
§ 1647.) Here, not only was the agreement to arbitrate captioned
“Mutual” (“Mutuo”), but also the associate policy handbook made
available to Ramirez and which she acknowledged receiving on
the same day she applied for employment, although not
incorporated by reference and not claimed by Real Time and
Cosway to be an enforceable agreement to arbitrate, included a
5 Despite the use of “any such” rather than simply “any” or
“all” in the arbitration agreement at issue in Serpa, we concluded
the agreement was bilateral because it incorporated the
arbitration policy in the employee handbook, which “establish[ed]
an unmistakable mutual obligation on the part of [the employer]
and [the employee] to arbitrate ‘any dispute’ arising out of her
employment.” (Serpa v. California Surety Investigations, Inc.,
supra, 215 Cal.App.4th at p. 705.)
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provision that expressly stated “the Employer and I agree” to
submit any employment-related dispute to arbitration. Under
these circumstances there can be no question the Mutual
Arbitration Agreement was intended to be, and was in fact,
mutual.
3. The Trial Court Properly Exercised Its Discretion in
Dismissing the Class Allegations
The Mutual Arbitration Agreement did not address class
actions. There was neither a class action waiver, express or
implied (that is, the agreement did not state employees must
arbitrate their claims on an individual basis)6 nor consent to
arbitrate classwide claims. In light of this silence, the trial court
properly agreed with Real Time and Cosway that, under the
FAA, Ramirez’s claims on behalf of a putative class of current
and former employees were not subject to arbitration. (Lamps
Plus, Inc. v. Varela, supra, 139 S.Ct. at p. 1412 [“a court may not
compel arbitration on a classwide basis when an agreement is
‘silent’ on the availability of such arbitration”]; accord, Stolt-
Nielsen S. A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662, 684;
see also Lamps Plus, at p. 1419 [“courts may not infer from an
ambiguous agreement that parties have consented to arbitrate on
a classwide basis”].)
Ramirez does not challenge this aspect of the trial court’s
April 7, 2021 order. Rather, asserting that she never entered an
enforceable class action waiver (a point Real Time and Cosway do
not contest), Ramirez contends the court erred in striking her
6 As noted, the arbitration provision in Real Time’s associate
policy handbook waived the employee’s right to bring “any type of
collective or class claim” in any forum. (See fn. 2.)
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class claims “without analysis” and urges us to remand those
claims for a trial on the merits.
Ramirez’s argument fails to mention that the trial court’s
order striking the class allegations was “without prejudice.”
Because the court has retained jurisdiction over the action,
staying it pending resolution of the arbitration (Code Civ. Proc.,
§ 1281.4), once arbitration has been completed, Ramirez will be
free to file a new pleading reasserting any putative class claims,
assuming Ramirez can still allege in good faith, as she did in her
first amended complaint, that she will fairly and adequately
protect the interest of the class she seeks to represent. Requiring
that the case progress in this manner was well within the trial
court’s broad discretion to control the order of proceedings. (See
Code Civ. Proc., § 128, subd. (a)(3); Little v. Pullman (2013)
219 Cal.App.4th 558, 570 [“[i]t is beyond dispute that the court
may control its processes so as to most efficiently and effectively
safeguard judicial economy and administer substantial justice”];
see also Natkin v. California Unemployment Ins. Appeals Bd.
(2013) 219 Cal.App.4th 997, 1012.)
DISPOSITION
The order compelling arbitration and dismissing the class
allegations in Ramirez’s first amended complaint is affirmed.
Real Time and Cosway are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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