Mendoza v. Trans Valley Transp.

75 Cal.App.5th 748

290 Cal.Rptr.3d 702

Jose Mario MENDOZA, Plaintiff and Respondent,

v.TRANS VALLEY TRANSPORT et al., Defendants and Appellants.

H044372

Court of Appeal, Sixth District, California.

Filed February 4, 2022

Attorneys for Plaintiff and Respondent, Jose Mario Mendoza: Karasik Law Firm, Gregory N. Karasik, Pacific Palisades, Law Offices of Santos Gomez, Santos Vasquez Gomez, Soquel

Attorneys for Defendants and Appellants, Trans Valley Transport et al.: Brothers Smith LLP, Horace Green, Robert Joseph Brothers, Tonya Draeger Hubinger, Walnut Creek

Attorneys for Cross-Defendants, PeopLease, LLC: Ellrod, Ramirez, Trester LLP, Tracie Lynn Childs, San Diego, Manning & Kass, Ellrod et al LLP, Alfred Michael DeLaCruz, San Diego

Attorney for the California Labor Commissioner: Jessica Fry, San Jose

Greenwood, P. J.

In this wage and hours class action, we consider whether an arbitration provision in an employee handbook, coupled with acknowledgement forms the class representative signed, created a legally binding agreement to arbitrate the claims presented. Defendants and appellants Trans Valley Transport (Trans Valley) and FTU Labor Contractors, Inc. (FTU, jointly "Employers") appeal from the trial court's order denying their petition to compel arbitration of a putative class action brought by a former employee—plaintiff and respondent Jose Mario Mendoza—on behalf of truck drivers employed by Trans Valley and FTU. The trial court found that the parties had not entered into a binding agreement to arbitrate.

On appeal, Employers contend, based on a delegation clause in the arbitration policy described in FTU's employee handbook, that the question whether the parties had agreed to arbitrate is for the arbitrator, not a court, to decide. They also argue that the parties entered into an express agreement to arbitrate based on the arbitration clause in the handbook and the acknowledgement forms. Alternatively, they argue that Mendoza entered into an implied-in-fact agreement to arbitrate when he received the handbook and worked for the company. Finally, they argue that the Arbitration Policy is not unconscionable.

We conclude that Employers have forfeited their delegation clause argument by reserving the issue for their reply in the trial court and not adequately briefing the issue below or on appeal. However, we exercise our discretion to address the issue on the merits, and hold that it was for a court to decide whether the parties had entered into an agreement to arbitrate. We also conclude that in the circumstances of this case, the parties have not entered into either an express or an implied contract to arbitrate their disputes. We will therefore affirm the trial court's order denying the motion to compel arbitration.

I. FACTS

A. Mendoza's Job Application

Mendoza applied for employment with FTU as a truck driver in June 2012. At that time, he met with a company owner and a supervisor. Mendoza speaks Spanish and cannot read or write English. He therefore could not read or fill out FTU's 4-page employment application form. Mendoza told the owner and the supervisor he could not speak or read English. One or both of them spoke Spanish; they interviewed Mendoza and filled out the application form for him.

According to that application, Mendoza's highest level of education was the sixth grade in El Salvador; he also went to truck driving school. Mendoza signed page 4 of the employment application. There were several paragraphs above the signature line, which included the following: "I certify that I have read and understood all of this employment application. [¶][¶] If hired, I agree to abide by all the rules and policies of the employer."

FTU's work is seasonal; most of the truck drivers are hired in February and let go in November. FTU hired Mendoza as a temporary, interstate truck driver on September 4, 2012. Mendoza worked for FTU for six weeks in September and October 2012, and from March until August in 2013 (6 months), and from March until July in 2014 (5 months).

B. Events on Date of Hire

FTU's evidence included the declaration of Allen Rusler, FTU's director of human resources. Rusler stated that he met with each new hire for 45 to 90 minutes to go over the employment documents, including the employee handbook (Handbook). If the new hire did not speak English, an FTU employee translated for Rusler during the meeting. During his meeting with each new hire, Rusler went over each provision in the Handbook, including the arbitration policy. After reviewing the Handbook, Rusler asked whether the employee had any questions, and after answering any questions, Rusler had the employee sign the acknowledgement forms. Rusler's custom and practice in 2012 was to give Spanish-speaking employees a Spanish-language version of the Handbook, and he declared that Mendoza "would have been provided a Spanish version of the ... Handbook" when he was hired.

Mendoza did not recall receiving a copy of the English-language version of the Handbook, but stated it is possible it was in a packet of documents he was given when he was hired. Mendoza denied that he was ever given the Spanish-language version of the Handbook.

C. Text of Handbook and Arbitration Policy

The first page of the 63-page FTU Employee Handbook began with the salutation "Welcome to FTU! " and stated in relevant part: "Your FTU handbook is designed for quick reference and general information. It is not intended as a contract of employment and does not provide in detail all of the Company's policies. However, it does provide an overview about many of the Company's personnel procedures, practices and policies that affect your employment. [¶] The information contained in this handbook summarizes policies, which are subject to changes and/or to deletions from time to time with the exception of the Company's at-will employment policy.... Consequently, all terms and conditions of your employment may be changed or withdrawn at [the] company's unrestricted option at any time, with or without good cause."

The following statement appeared at the top of page 2 of the Handbook: "THE POLICIES BELOW ARE A CONDITION OF EMPLOYMENT WITH THE COMPANY" (emphasis original). That statement is followed by several sections with the following headings: "At-Will Employment Policy, " "Binding Arbitration Policy " (Arbitration Policy), "An Equal Opportunity Employer ," "Protecting Our Union-Free Environment ," "Customer Service and Safety, " SAFETY POLICY, and others (emphasis original).

The Arbitration Policy, which was two and a half pages long and started on page 2 of the Handbook, began with the following: "The Company utilizes a system of alternative dispute resolution which involves binding arbitration to resolve all disputes which may arise out of the employment context. Because of the mutual benefits (such as reduced expense and increased efficiency) which private binding arbitration can provide both the Company and the employee, employee and the Company both agree that any claim, dispute, and/or controversy that either party may have against one another (including, but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, as well as all other applicable state or federal laws or regulations) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between the employee and the Company (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with your seeking employment with, employment by, or other association with the Company whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under the California Workers' Compensation Act, and Employment Development Department claims) shall be submitted to and determined exclusively by binding arbitration."¹

The Arbitration Policy prohibited class, collective, and joint actions. It did not prohibit administrative claims and investigations, including NLRB, DFEH, or EEOC claims, but provided that after administrative remedies are exhausted, such claims must go to arbitration. The Arbitration Policy did not mention wage and hour claims. The Arbitration Policy contained terms regarding arbitration procedures, discovery, arbitrator qualifications and immunity, extensions of time, the arbitrator's decisions, the allocation of costs and arbitrator fees, a waiver of the third-party exception in Code of Civil Procedure section 1281.2, subdivision (c), and a delegation clause. The Arbitration Policy concluded with the following language in all caps: "EMPLOYEE UNDERSTANDS BY BEING EMPLOYED BY THE COMPANY, AS A CONDITION OF EMPLOYMENT, THE EMPLOYEE [sic ] AGREES TO THIS BINDING ARBITRATION POLICY, WHICH MEANS THE EMPLOYEE AND THE COMPANY BOTH GIVE UP RIGHTS TO TRIAL BY JURY AND RIGHTS TO PARTICIPATE IN CLASS ACTION CLAIMS."

In addition to the Arbitration Policy, the Handbook described FTU's safety policy, its alcohol and drug testing policy, employee benefits, company rules and regulations, additional rules and regulations for truck drivers, and its "Driver Safety Service Awards Program." Neither the Arbitration Policy nor the Handbook had signature lines for employees or FTU to sign.

D. Forms Mendoza Signed When Hired

Employers' motion to compel arbitration relied on four documents Mendoza signed when he was hired: two acknowledgement forms and two checklist forms, all of which were written in English. There was no Spanish-language version of those forms. The first acknowledgement form was a two-page document entitled "Notice and...