1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHELLE RIZVANOVIC, Case No. 1:21-cv-01278-CDB

12 Plaintiff, ORDER GRANTING IN PART MOTION TO

COMPEL ARBITRATION OF PLAINTIFF’S

13 v. INDIVIDUAL CLAIMS AND TO DISMISS 14 PLAINTIFF’S CLASS CLAIMS

UNITED PARCEL SERVICE, INC.

15 (Doc. 24) Defendant. 16 17 Before the Court is Defendant United Parcel Service, Inc.’s (“Defendant”) Motion to 18 Compel Arbitration of Plaintiff’s Individual Claims and to Dismiss Plaintiff’s Class Claims (Doc. 19 24), Plaintiff Michelle Rizvanovic’s (“Plaintiff”) Opposition to the motion (Doc. 25), and 20 Defendant’s Reply (Doc. 26).1 21 Background 22 Plaintiff is a former seasonal personal vehicle driver (“PVD”) that worked for Defendant, 23 an Ohio Corporation. (Doc, 1, Complaint ¶¶ 7, 13; Doc. 25-1, Rizvanovic Decl. ¶ 3). On 24 September 26, 2019, Plaintiff applied for a PVD position with Defendant through Defendant’s 25 online application portal called upsjobs.com. (Doc. 24-3, Boyd Decl. ¶ 2). Through the portal, 26 Plaintiff created a profile. Id. To create a profile, Plaintiff provided login information, her email,

27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been assigned to Magistrate Judge Christopher D. Baker for all purposes. (Docs. 1 and a “unique secure password,” to access her account. Id. As part of the application process, 2 Plaintiff was presented with several documents—one of them being an electronic version of the 3 “Acknowledgment of PEAK Season Hiring Policy.” Id. at ¶ 3. 4 On October 11, 2019, Defendant claims Plaintiff electronically signed the 5 “Acknowledgment of PEAK Season Hiring Policy.” Id. To do so, Plaintiff checked a box that 6 stated: “I agree that my electronic signature is the legally binding equivalent to my handwritten 7 signature. By my electronic signature, I acknowledge that I have carefully reviewed this 8 Agreement and understand its contents.” Id. Plaintiff states she “did not electronically, or by 9 other means, read and accept the Arbitration Agreement…did not agree to enter into the 10 Arbitration Agreement…did not intend to be bound by it [and] do not remember the Arbitration 11 agreement at all.” Rizvanovic Decl. ¶ 11. 12 The Agreement in question sets forth that it is an employment contract “governed by the 13 Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce.” 14 Boyd Decl. Ex. A. at ¶ 2. 15 Section 2 of the Agreement states, if the Federal Arbitration Act does not apply to the 16 Agreement, then the law of the state in which services were primarily performed shall govern. Id. 17 The Agreement requires signing parties to not litigate “any dispute arising out of or related to 18 application or selection for employment, employment, and/or termination of employment” with 19 Defendant and “disputes arising out of or relating to…compensation, classification, minimum 20 wage, expense reimbursement, overtime, breaks and rest periods…and state statute or 21 regulations.” Id. Further, the Agreement provides “the Arbitrator, and not any court, shall have 22 exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, 23 unconscionability or waiver of this Agreement, including, but not limited to any claim that all or 24 any part of this Agreement is void or voidable. However,…the preceding sentence does not apply 25 to Class Action Waiver….” Id. 26 Section 6 of the Agreement requires “[Defendant] and [Plaintiff] to bring any claim on an 27 individual basis and not on a class and/or collective action basis.” Boyd Decl. Ex. A. at ¶ 6. 1 part of the Class Action Wavier…is invalid, unenforceable, unconscionable, void or voidable, 2 may be determined only by a court of competent jurisdiction and not by an arbitrator.” Id. 3 Additionally, “[t]he Class Action Waiver shall be severable from this Agreement if there is a final 4 judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, 5 void or voidable.” Id. 6 From October 22, 2019, to December 31, 2019, Plaintiff worked as a seasonal PVD for 7 Defendant based out of the Stockdale Center, located in Bakersfield, California. Rizvanovic 8 Decl. ¶ 3; Compl. ¶ 13. Plaintiff’s duties as a PVD required her to travel to a designated UPS 9 storage container or a UPS customer center in Bakersfield to pick up various packages for 10 delivery. Rizvanovic Decl. ¶ 3; Doc. 24-2, Rogers Decl. ¶ 3. According to Plaintiff, Defendant 11 required her to scan each package with a “UPS-issued handheld device,” which in turn gave her 12 the delivery route for each package. Rizvanovic Decl. ¶ 7; Compl. ¶ 18. Plaintiff claims 13 Defendant required her, and other PVDs, to deliver 120 packages in a regular 8-hour shift, one 14 package every 4 minutes. Rizvanovic Decl. ¶ 8; Compl. ¶ 18. Plaintiff delivered packages only 15 to addresses within the State of California. Rogers Decl. ¶ 3. 16 Plaintiff claims Defendant instructed her to clock out for meal periods and that she could 17 not scan packages while she was clocked out during her meal period. Rizvanovic Decl. ¶ 9; 18 Compl. ¶ 20. Plaintiff alleges Defendant instructed her, and other PVDs, to work through meal 19 periods to drive to and from their designated pick-up areas to fully reload their car with packages. 20 Rizvanovic Decl. ¶ 10; Compl. ¶ 21. Plaintiff asserts that during her employment, she and other 21 PVDs were not afforded and did not take lawfully required rest periods. Rizvanovic Decl. ¶ 11; 22 Compl. ¶¶ 23-25. On December 31, 2019, Plaintiff’s employment ended with Defendant. 23 Rizvanovic Decl. ¶ 3; Rogers Decl. ¶ 3; Compl. ¶ 13. 24 On July 14, 2021, Plaintiff filed a class action complaint against Defendant in Kern 25 County Superior Court. (Doc. 1 at ¶ 2 and Ex. A). In her complaint, Plaintiff asserts claims 26 against Defendant for violations of California’s Labor Code and California’s Business & 27 Professions Code. Specifically, Plaintiff alleges seven causes of action: (1) unpaid overtime, (2) 1 wages, (5) failure to furnish timely and accurate wage statements, (6) failure to pay all wages 2 owed upon termination, and (7) violation of California’s unfair competition law. Id. at ¶¶ 39 - 3 102. On August 20, 2021, Defendant filed a notice of removal from Kern County Superior Court. 4 (Doc. 1). 5 On March 16, 2022, Defendant filed a motion to stay proceedings in its entirety and for all 6 purposes pending the Supreme Court’s decision in Southwest Airlines Co. v. Saxon, 142 S. Ct. 7 638 (2021). (Doc. 15). Plaintiff filed an opposition on April 6, 2022 (Doc. 16), and Defendant 8 filed a reply on April 13, 2022 (Doc. 17). On April 21, 2022, the Honorable Magistrate Judge 9 Sheila K. Oberto issued an order granting Defendant’s motion to stay. (Doc. 21). On June 21, 10 2022, the Supreme Court issued a decision in Saxon, and Judge Oberto issued an order lifting the 11 stay on June 29, 2022. (Docs. 22-23). 12 On July 8, 2022, Defendant filed the instant motion to compel arbitration of Plaintiff’s 13 individual claims and to dismiss her class claims now at issue. (Doc. 24). Plaintiff filed an 14 opposition on July 22, 2022 (Doc. 25), and Defendant filed a reply on August 1, 2022 (Doc. 26). 15 On September 1, 2022, and November 2, 2022, Defendant filed notices of supplemental authority 16 relevant to its motion. (Docs. 30, 34). 17 Discussion 18 A. Whether the FAA Applies to Any Arbitration Agreement Between the Parties 19 Defendant’s motion first requires this Court to decide whether a valid agreement to 20 arbitrate exists between the parties under the Federal Arbitration Act (the “FAA”). This Court 21 concludes that it is bound by the Ninth Circuit’s opinion in Rittmann v. Amazon.com, Inc., 971 22 F.3d 904 (9th Cir. 2020) and finds that the FAA is inapplicable to the parties’ agreement. 23 Under the FAA, an arbitration clause in a contract “shall be valid, irrevocable, and 24 enforceable, save upon such grounds as exist at law or in equity for the revocation of any 25 contract.” 9 U.S.C. § 2. The FAA establishes “a liberal federal policy favoring arbitration 26 agreements.” Epic Sys. Corp v. Lewis, 138 S. Ct. 1612, 1621 (2018) (quotation and citation 27 omitted); see Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 581 (2008) (Congress 1 “[C]ourts must place arbitration agreements on equal footing with other contracts and enforce 2 them according to their terms.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) 3 (internal citations omitted). 4 Section 4 of the FAA allows “[a] party aggrieved by the alleged failure, neglect, or refusal 5 of another to arbitrate under a written agreement for arbitration [to] petition any United States 6 district court…for an order directing that such arbitration proceed in the manner provided for in 7 such agreement.” 9 U.S.C. § 4. A court’s task on such a petition is to determine “(1) whether a 8 valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the 9 dispute at issue.” Kilgore v. KeyBank Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013) (en banc) 10 (quoting Chiron Corp v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)); 11 Mitsubishi Motors Co. v. Soler Chrysler-Plymouth, 473 U.S. 614, 627-28 (1985). 12 Section 1 of the FAA contains a transportation worker exemption that excludes from the 13 ambit of the FAA employment contracts of “seamen, railroad employees, [and] any other class of 14 workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1; Circuit City Stores, Inc. v. 15 Adams, 532 U.S. 105, 118-19 (2001). A court must “assess whether a Section 1 exemption 16 applies before ordering arbitration.” In re Van Dusen, 654 F.3d 838, 846 (9th Cir. 2011); see 17 New Prime Inc. v. Oliveira, 139 S. Ct. 532, 537 (2019) (whether an arbitration agreement is part 18 of a contract of employment of a worker engaged in interstate commerce is a question for the trial 19 court before it compels arbitration). 20 Plaintiff claims as a PVD for Defendant she falls within the FAA’s transportation worker 21 exemption. Significantly, the Ninth Circuit and Supreme Court have provided guidance on this 22 issue. In Rittmann, the Ninth Circuit considered whether an Amazon Flex (“AmFlex”) worker 23 fell under the transportation worker exemption. Rittmann, 971 F.3d at 915-19. Like Plaintiff 24 here, AmFlex workers are tasked to pick up packages that had been distributed to Amazon 25 warehouses, “certainly across state lines, and transport them for the last leg of the shipment to 26 their destination.” Id. at 915. The Rittmann Court noted, “Amazon packages do not ‘come to 27 rest,’ at Amazon warehouses, and thus the interstate transactions do not conclude at those 1 of Amazon’s interstate transaction, and thus, they were engaged in interstate commerce. Id. at 2 916-17. 3 In Saxon, the Supreme Court held that an airline ramp supervisor for Southwest Airlines 4 whose “work frequently require[d] her to load and unload baggage, airmail, and commercial 5 cargo on and off airplanes that travel across the country” fell within Section 1’s exemption. 6 Saxon, 142 S. Ct. 1783, 1787. On the one hand, the Court declined to adopt a broad rule that 7 exempts all workers of a business engaged in interstate commerce, and on the other hand, refused 8 to limit the exemption to only workers who physically traveled across state lines. Id. at 1791-93. 9 Instead, the Court determined “any class of workers directly involved in transporting goods 10 across state or international borders falls within § 1’s exemption.” Id. at 1789. The Court 11 elaborated that, to satisfy § 1’s exemption of “transportation worker,” the worker “must play a 12 direct and ‘necessary role in the free flow of goods’ across borders.” Id. at 1790 (quoting Circuit 13 City Stores, 532 U.S. at 115. 14 Defendant argues the Supreme Court’s ruling in Saxon “undermined Rittmann’s 15 reasoning” for concluding that last leg delivery drivers (like Plaintiff here) qualify for the § 1 16 exemption. (Doc. 24-1 at 8-9). This Court disagrees for three reasons. First, Defendant is 17 correct that the Ninth Circuit’s analysis in Rittmann was informed in part by the interstate nature 18 of Amazon’s business model, and Saxon clarified that what matters for purposes of determining 19 the applicability of § 1’s exemption is the conduct of the employee – not of the employer. 20 However, after Saxon, the Ninth Circuit elaborated that its holding in Rittmann “was rooted both 21 in the interstate nature of Amazon’s business, and in the fact that ‘AmFlex workers complete the 22 delivery of goods that Amazon ships across state lines and for which Amazon hires [them] to 23 complete the delivery.’” In re Grice, 974 F.3d 950, 957 n.5 (9th Cir. 2022) (internal citation 24 omitted) (emphasis added). Thus, the Ninth Circuit’s reasoning behind the Rittmann holding is 25 wholly consistent with the Saxon court’s clarification that a plaintiff satisfies the § 1 exemption if 26 he or she plays “a direct and ‘necessary role in the free flow of goods’ across borders.” – as do 27 last leg delivery drivers. 1 Second, the Ninth Circuit’s holding in Rittmann relied in part on the First Circuit’s 2 resolution of the application of § 1’s exemption to last leg drivers “in a nearly identical case.” 3 Rittmann, 971 F.3d at 910 (citing Waithaka v. Amazon.com, Inc., 96 F.3d 10 (1st Cir. 2020)). 4 Post-Saxon, the First Circuit has reaffirmed that its holding in Waithaka that last leg delivery 5 drivers satisfy § 1’s exemption remains good law, notwithstanding the Supreme Court’s 6 clarification in Saxon (noted above) that courts must look to the employee’s conduct – not the 7 nature of the employer’s business. See Immediato v. Postmates, Inc., 54 F.4th 67, 73, 80 (1st Cir. 8 2022) (reconciling Saxon with Waithaka). Because the defendant in Waithaka (Amazon) 9 “orchestrated the interstate movement” of goods to a customer who paid for local delivery, the 10 First Circuit concluded that such goods “remained within the flow of interstate commerce until 11 arriving at the customer’s doorstep.” Id. at 78. Given its earlier and favorable reliance on 12 Waithaka and the First Circuit’s recent and persuasive reconciliation of Waithaka and Saxon, this 13 Court is unpersuaded that the Ninth Circuit would retreat from Rittmann’s reasoning (as 14 Defendant argues), because, at their core, both Rittmann and this case involve interstate 15 commerce that is still in progress through the direct and necessary work of last leg delivery 16 drivers. 17 Third, while noting that the applicability of § 1’s exemption to last leg delivery drivers 18 presented a closer call than the airline ramp supervisor in Saxon, the Supreme Court expressly 19 declined to review the Ninth Circuit’s decision in Rittmann. Saxon, 142 S. Ct. at 1789 n. 2 See 20 Amazon.com, Inc. v. Rittmann, 141 S. Ct. 1374 (2021) (petition for writ of certiorari denied). 21 This Court does not have the authority to ignore circuit court precedent. Mohamed v. Uber 22 Techs., Inc., 848 F.3d 1201, 1211 (9th Cir. 2016). Thus, Rittmann remains binding and must be 23 followed by this Court. 24 In Rittmann and the instant case, from the moment the packages entered “the flow of 25 interstate commerce,” the goods were always “destined for” customers to whom the last-mile 26 drivers made deliveries. Waithaka, 966 F.3d at 13, 20. The last leg of the trip, even if it involved 27 only a trip from an in-state warehouse to an in-state consumer, was a part of an ongoing and 1 was delivered by Rittmann and Plaintiff. Rittmann, 971 F.3d at 916. Thus, last mile delivery 2 drivers play a direct and necessary role in interstate commerce. 3 In contrast, cases that involve food delivery services for local vendors are distinguishable 4 from the holding in Saxon. E.g. Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 802 (7th Cir. 5 2020). Food purchased from local vendors has already exited the flow of interstate commerce. 6 Immediato, 54 F.4th at 80. “Any subsequent journey taken by the goods in the hands of 7 [delivery] drivers, as part of [a] takeout meal, was not part of the ongoing and continuous 8 interstate transmission of these goods.” Archer v. Grubhub, Inc., 490 Mass. 352, 360 (Mass. 9 2022) (distinguishing last leg delivery drivers from local food delivery drivers); see Levin v. 10 Caviar, Inc., 146 F. Supp.3d 1146, 1153 (N.D. Cal. 2015) (“prepared meals from local restaurants 11 are not a type of good that are ‘indisputably part of the stream of commerce.’”). Therefore, food 12 delivery drivers for local vendors do not constitute a class of workers directly involved in 13 transporting goods across state or international borders that fall within Section 1’s exemption. 14 Saxon, 142 S. Ct. 1789; see Domino’s Pizza, LLC v. Carmona, 143 S. Ct. 361 (2022) (the 15 Supreme Court vacated the Ninth Circuit’s opinion that pizza delivery drivers were interstate 16 transportation workers under Section 1 of the FAA and remanded the case for further 17 consideration in light of Saxon). 18 Accordingly, the Court finds that the Section 1 exemption applies, and therefore, the 19 Court cannot compel arbitration under the FAA. As such, the Court now must turn to whether 20 California law requires enforcement of the arbitration agreement. See Boyd Decl. Ex. A. (if the 21 FAA does not apply to the Agreement, then the law of the state in which services were primarily 22 performed shall govern). E.g., Palcko v. Airborne Exp., Inc., 372 F.3d 588, 596 (3d Cir. 2004) 23 (enforcing FAA-exempt arbitration agreement under state law); Cole v. Burns Int'l Sec. Servs., 24 105 F.3d 1465, 1472 (D.C. Cir. 1997) (“[W]e have little doubt that, even if an arbitration 25 agreement is outside the FAA, the agreement still may be enforced”); Breazeale v. Victim Servs., 26 Inc., 198 F. Supp.3d 1070, 1079 (N.D. Cal. 2016) (“when a contract with an arbitration provision 27 falls beyond the reach of the FAA, courts look to state law to decide whether arbitration should be 1 B. Whether the Parties Entered into an Enforceable Arbitration Agreement 2 Under State Law 3 Under both the FAA and California’s Arbitration Act (“CAA”), arbitration agreements are 4 “valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any 5 contract.” Cal. Code Civ. P. § 1281; Concepcion, 563 U.S. at 336. California law, like federal 6 law, generally “favors enforcement of valid arbitration agreements.” Armendariz v. Found. 7 Health Psychcare Servs., Inc., 24 Cal. 4th 83, 99 (Cal. 2000). 8 Although the CAA’s scope is generally similar to the FAA’s, there are differences in 9 application. The FAA preempts both state judicial rulings and legislation disfavoring arbitration. 10 Perry v. Thomas, 482 U.S. 483, 490-91 (1987). In contrast, “the CAA, being a state statute, 11 ‘obviously does not prevent [California’s legislature] from selectively prohibiting arbitration in 12 certain areas.’” Tiri v. Lucky Chances, Inc., 226 Cal. App. 4th 231, 249, n. 12 (Cal. Ct. App. 1st. 13 Dist. 2014) (quoting Armendariz, 24 Cal. 4th at 98). Moreover, no public policy favors requiring 14 arbitration of issues that the parties have not agreed to arbitrate. Rebolledo v. Tilly’s, Inc., 228 15 Cal. App. 4th 900, 912 (Cal. Ct. App. 4th Dist. 2014). In ruling on a motion to compel 16 arbitration, the court, guided by general principles of California law, must first determine whether 17 the parties agreed to arbitrate the dispute. Mendez v. Mid-Wilshire Health Care Center, 220 Cal. 18 App. 4th 534, 541 (Cal. Ct. App. 2d Dist. 2013). 19 Under the CAA, “[t]he trial court may resolve motions to compel arbitration in summary 20 proceedings, in which…‘the trial court sits as a trier of fact, weighing all the affidavits, 21 declarations, and other documentary evidence, as well as oral testimony received at the court’s 22 discretion, to reach a final determination.’” Lane v. Francis Capital Mgmt. LLC, 224 Cal. App. 23 4th 676, 683 (Cal. Ct. App. 2d. Dist. 2014) (quoting Engalla v. Permanente Med. Group, Inc., 15 24 Cal. 4th 951, 972 (Cal. 1997). The party seeking arbitration bears the burden of proving the 25 existence of a valid arbitration agreement by a preponderance of the evidence, and the party 26 opposing arbitration bears the burden of proving any defense against enforcement by a 27 preponderance of the evidence. Pinnacle Museum Tower Assn. v. Pinnacle Mkt. Dev. (US), LLC, 1 The threshold issue in deciding a motion to compel arbitration is whether the parties 2 agreed to arbitrate. Van Ness Townhouses v. Mar Indus. Corp., 872 F.2d 754, 756 (9th Cir. 3 1988). Plaintiff argues Defendant failed to establish an agreement to arbitrate by a preponderance 4 of the evidence that an arbitration agreement existed between the parties. (Doc. 25 at 13-16). 5 Specifically, Plaintiff contends Defendant failed to prove mutual assent to the agreement and that 6 her signature on the agreement was authentic and valid. Id. Plaintiff asserts the declaration of 7 Jeffrey Boyd failed to show he had personal knowledge that Plaintiff signed the arbitration 8 agreement. Id. at 15-16 (citing Cal. Evid. Code §§ 403(a), 702(a)). Plaintiff also argues Boyd’s 9 declaration contains hearsay statements. Id. at 23-26 (citing Fed. R. Evid. 802); Gamboa v. 10 Northeast Community Clinic, 72 Cal. App. 5th 158 (Cal. Ct. App. 2d. Dist. 2021). In addition, 11 Plaintiff claims there was no mutual assent as Defendant did not sign the arbitration agreement. 12 Id. at 16. 13 Plaintiff’s claim that an arbitration agreement does not exist between the parties is without 14 merit. The declaration of Mr. Boyd establishes he had personal knowledge that a valid arbitration 15 agreement existed between the parties. Under Fed. R. Evid. 6022, a witness may testify to a 16 matter only if evidence is introduced sufficient to support a finding that the witness has personal 17 knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s 18 testimony. Id. 19 Here, Mr. Boyd provides information about his position and responsibilities as a Talent 20 Acquisition Manager, his access to records maintained by Defendant in its usual course of 21 business for PVDs, the process by which Plaintiff created her profile and login information on 22 Defendant’s employment portal, and how she accessed and signed the agreement. Boyd Decl. ¶¶ 23 1-3, 7. This information lays a proper foundation and establishes Boyd’s personal knowledge of 24 the arbitration agreement attached to his declaration. Boyd Decl. Ex. A; see Wright v. Sirius XM 25 2 Plaintiff improperly cites to sections 403 and 702 of the California Evidence Code for 26 her contention that Mr. Boyd lacks personal knowledge. Because this case is being heard in federal court, the Federal Rules of Evidence govern. Feldman v. Allstate Ins. Co., 322 F.3d 660, 27 667 (9th Cir. 2003); Quintero v. United States, No. 08-CV-1890, 2011 WL 83675, at *5 (E.D. Cal. Mar. 2, 2011) (“Admissibility of evidence in federal actions is governed by the Federal Rules 1 Radio Inc., No. SACV 16-01688 JVS (JCGX), 2017 WL 4676580, at *2 (C.D. Cal. June 1, 2017 2 (a witness’s review of business records and familiarity with company procedures laid a proper 3 foundation and established her testimony about arbitration was based on her personal 4 knowledge); compare Gamboa, 72 Cal. App. 5th at 171 (“The Clinic could have met its burden in 5 other ways, including a declaration from the Clinic’s custodian of records”). 6 Plaintiff’s hearsay objections also fail. Mr. Boyd’s declaration is based on his personal 7 knowledge and experience of Defendant’s application process, a regularly conducted activity, and 8 that Plaintiff executed the arbitration agreement as part of that process. Fed. R. Evid. 803(6); see 9 J.P. v. Educ. Testing Servs., No. CV 20-4502 PSG (PVCx), 2020 WL 10693044, at *11 (C.D. 10 Cal. Oct. 30, 2020) (the executive director could testify about the records of a regularly conducted 11 activity without violating the hearsay rule). See also Stover-Davis v. Aetna Life Ins. Co., No. 12 1:15-cv-1938-BAM, 2016 WL 2756848, at *3 (E.D. Cal. May 12, 2016) (at this stage, the 13 objection must focus on the admissibility of the document’s contents, not its form). 14 Plaintiff’s claim an arbitration agreement does not exist as Defendant did not sign the 15 document is unavailing. Under California law, the writing memorializing an arbitration 16 agreement need not be signed by both parties to be upheld as a binding arbitration agreement. 17 Serafin v. Balco Properties Ltd., LLC, 235 Cal. App. 4th 165, 176 (Cal. Ct. App. 1st. Dist. 2015) 18 (petition for review denied). “It is not the presence or absence of a signature [on an agreement] 19 which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which 20 matters.” Id. (citing Banner Entertainment, Inc. v. Superior Court, 62 Cal. App. 4th 348, 361 21 (Cal. Ct. App. 2d. Dist. 1998). Evidence confirming the existence of an agreement to arbitrate, 22 despite an unsigned agreement, can be based, for example, on “conduct from which one could 23 imply either ratification or implied acceptance of such a provision.” Id. 24 In this case, Defendant did not sign the arbitration agreement. See Boyd Decl. Ex. A. 25 However, the evidence shows Defendant intended to be bound by the arbitration agreement. 26 Defendant authored the agreement, provided the agreement to Plaintiff through its portal, 27 accepted Plaintiff’s employment application, hired Plaintiff, and filed this motion to compel 1 arbitration. Boyd Decl. ¶¶ 1-3. Accordingly, a valid arbitration agreement exists between the 2 parties. 3 Plaintiff’s related claim that she neither read nor intended to be bound by the arbitration 4 agreement is contradicted by her signature on the agreement (a signature she does not disavow 5 applying) acknowledging her review and assent to the agreement’s terms.3 Under California law, 6 electronic signatures are acceptable if they are “the act of the person,” which “may be shown in 7 any manner, including a showing of the efficacy of any security procedure” that applies to the 8 electronic signature process. Cal. Civ. Code § 1633.9(a). When Plaintiff logged-in to 9 Defendant’s online portal, she checked a box stating, “I agree that my electronic signature is the 10 legally binding equivalent to my handwritten signature. By my electronic signature, I 11 acknowledge that I have carefully reviewed this Agreement and understand its contents.” 12 Romero’s user account was also safeguarded by a unique, confidential password to which 13 Defendant had no access. Boyd Decl. ¶ 2. 14 Plaintiff next argues she is not subject to arbitration as the scope of the agreement does 15 not cover her statutory claims, her statutory rights are not subject to negotiation or waiver and that 16 the arbitration agreement is unconscionable. (Doc. 25 at 17-22). Ordinarily, courts may refuse to 17 enforce arbitration agreements upon such grounds that exist in law or in equity for the revocation 18 of any contract. Epic Sys. Corp, 138 S. Ct. at 1622. However, the Court lacks the authority to 19 decide these issues as the arbitration agreement includes a delegation clause. 20 “Although gateway issues of arbitrability are typically reserved for the court, parties may 21 agree to delegate them to the arbitrator.” Momot v. Mastro, 652 F.3d 982, 987 (9th Cir. 2011) 22 (citing Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68-70 (2010)). Courts should not assume 23 parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they 24 did so. Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 531 (2019) (citing First 25 Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1985)). Language that delegates to an 26 3 Plaintiff’s claim to have not read or reviewed the arbitration agreement is, in all events, 27 irrelevant. See Harris v. TAP Worldwide, LLC, 248 Cal. App. 4th 373, 383 (Cal. Ct. App. 2d Dist. 2016 (“The fact that defendant either chose not to read or take the time to understand these 1 arbitrator the authority to determine “the validity or application of any of the provisions of the 2 arbitration clause,” constitutes clear and unmistakable evidence. Momot, 652 F.3d at 987 (citing 3 Rent-A-Center, 130 S. Ct. at 2777). Where an express delegation clause exists, unless a party 4 opposing enforcement of the agreement specifically challenges the delegation clause, courts must 5 treat it as valid, leaving any challenge to the validity of the agreement as a whole for the 6 arbitrator. Rent-A-Center, 561 U.S. at 72 (emphasis added); see Brennan v. Opus Bank, 796 F.3d 7 1125, 1133 (9th Cir. 2015) (a party challenging an arbitration agreement on unconscionability 8 grounds must do so specifically with respect to the delegation provision to resist enforcement 9 thereof). 10 In this case, the express terms of the delegation clause provide “the Arbitrator, and not any 11 court shall have exclusive authority to resolve any dispute relating to the validity applicability, 12 enforceability, unconscionability or waiver of this Agreement.” Boyd Decl. Ex. A. ¶ 2. Thus, it 13 is clear and unmistakable from the text of the agreement, that the arbitrator, not the court, shall 14 resolve questions of arbitrability. See Mohamed, 848 F.3d at 1208-09 (holding similar language 15 in a delegation clause was clear and unmistakable). 16 Plaintiff has failed to specifically challenge the agreement’s delegation clause. See 17 generally (Doc. 25). Plaintiff only challenges that the agreement as a whole is unenforceable. 18 Plaintiff’s arguments regarding the scope of the arbitration agreement, the agreement’s 19 enforceability under California’s Labor Code, and Plaintiff’s claim the agreement is 20 unconscionable may well render the claims unarbitrable. “But under the contract, the parties 21 clearly and unmistakably delegated this question to the arbitrator.” Ratajesak v. New Prime, Inc., 22 No. SA CV 18-9396-DOC (AGRx), 2019 WL 1771659, at *6 (C.D. Cal. March 20, 2019). 23 Plaintiff can and should raise her challenges before the arbitrator. 24 Defendant also moves for dismissal of Plaintiff’s representative claims because they 25 exceed the scope of claims permitted by the arbitration agreement. (Doc. 24-1 at 13). Having not 26 reached the gateway questions of arbitrability, and instead finding that such questions are 27 delegated to the arbitrator, the Court finds that dismissal of Plaintiff’s class claims at this juncture 1 | Conclusion and Order 2 Accordingly, it is HEREBY ORDERED: 3 1. Defendant’s motion to compel arbitration of Plaintiff's individual claims and to dismiss 4 her class claims (Doc. 24) is GRANTED IN PART as to Plaintiff's request to compel 5 arbitration as to Plaintiff's individual claims; 6 2. The claims alleged by Plaintiff against Defendant included in the Complaint are submitted 7 to arbitration pursuant to the arbitration agreement set forth in Defendant’s 8 “Acknowledgement of PEAK Season Hiring Policy”; 9 3. Defendant’s request to dismiss Plaintiffs class claims is stayed pending the arbitrator’s 10 resolution of the arbitrability of Plaintiff's individual claims; 11 4. Defendant shall file a notice of completion with the Court within thirty (30) days of the 12 completion of arbitration; 13 5. The Court stays this action pending the outcome of arbitration; and 14 6. On or before April 10, 2023, the parties shall file a status report informing the Court of the 15 status of the arbitration proceedings. The parties shall also continue to file a joint status 16 report indicating the outcome and/or status of the underlying action every ninety (90) days 17 after filing the April 10, 2023 status report until the dispute between the parties has been 18 settled or otherwise resolved. 19 | IT IS SO ORDERED. *0 Dated: _ January 20, 2023 | Ww “WL D 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1A