Declaration_declaration_of_james_m_hester_in_support_of_reply_to_plaintiffs_opposition_to_motion_to_compel_arbitration_and_request_to_stay_actionReplyCal. Super. - 2nd Dist.April 5, 2018Electronically FILED by Superio G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, C A 90 07 1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 + ROGER M. MANSUKHANTI (SBN: 164463) STACEY M. COOPER (SBN: 226012) JAMES M. HESTER (SBN: 122133) 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 Telephone: (213) 576-5000 Facsimile: (213) 680-4470 Attorneys for Defendant BAKKAVOR FOODS USA, INC. SABRINA CEJA, an individual, Plaintiff, VS. BAKKAVOR FOODS USA, INC., a Court of California, County of Los Angeles on 03/06/2019 11:14 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk GORDON REES SCULLY MANSUKHANI, LLP SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CASE NO. BC700615 DECLARATION OF JAMES M. HESTER IN SUPPORT OF DEFENDANT BAKKAVOR FOODS USA, INC.’S REPLY TO PLAINTIFF’S OPPOSITION TO California corporation; REGGIE BARAJAS, MOTION TO COMPEL an individual, and DOES 1 through 50, ARBITRATION AND REQUEST TO inclusive, STAY THE ACTION Defendants. Date: March 13, 2019 Time: 8:30 a.m. Dept: 37 Judge: Hon. David S. Cunningham III Complaint Filed: April 5, 2018 Trial Date: Not Yet Set N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N N I, James M. Hester, declare as follows: 1. I am an attorney duly authorized to practice law before the courts of the State of California and before this Court. I am an attorney with the law firm of Gordon Rees Scully Mansukhani, LLP, attorneys of record for Defendant BAKKAVOR FOODS USA, INC. (“BAKKAVOR”). 2. I have personal knowledge of the facts set forth herein and, if called as a witness, I could and would testify competently to the matters set forth below. -1- DECLARATION OF JAMES M. HESTER IN SUPPORT OF BAKKAVOR FOODS USA, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, C A 90 07 1 1155896/43780846v.1 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. BAKKAVOR filed the within motion in September 2018 and it was heard on January 11, 2019. In support of that motion, BAKKAVOR filed a declaration from Bertha Caldera on September 27, 2018. A true and correct copy of the declaration is attached hereto as Exhibit A. 4. In support of its reply to Plaintiff’s opposition to the motion that was heard on January 11, 2019, BAKKAVOR also filed a supplemental declaration from Bertha Caldera on January 4, 2019. A true and correct copy of the declaration is attached hereto as Exhibit B. 5. With respect to the hearing on January 11, 2019, the Court issued a tentative ruling. A true and correct copy of that ruling is attached hereto as Exhibit C. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 6th day of March, 2019, at San Diego, California. OT -- “ps S45 MJ Jamef NY. Hester * | a DECLARATION OF JAMES M. HESTER IN SUPPORT OF BAKKAVOR FOODS USA, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION EXHIBIT “A” G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, CA 90 07 1 P = ~ 1 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ROGER M. MANSUKHANI (SBN: 164463) STACEY M. COOPER (SBN: 226012) BRITTNEY R. DOBBINS (SBN: 299768) CONRORVED Copy GORDON REES SCULLY MANSUKHANI, LLP SGINAY Pig 633 West Fifth Street, 52nd Floor or Los Angeles, CA 90071 SEP 27 2016 Telephone: (213) 576-5000 N Facsimile: (213) 680-4470 Shaidt H. vane, cxecuive Okie Glork By: Cristina Grllaka, Deputy Attorneys for Defendant BAKKAVOR FOODS USA, INC. SUPERIOR COURT OF CALIFORNIA - COUNTY OF LOS ANGELES SABRINA CEJA, an individual, CASE NO, BC700615 Plaintiff, DECLARATION OF BERTHA CALDERA IN SUPPORT OF VS. DEFENDANT’S MOTION TO COMPEL ARBITRATION AND BAKKAVOR FOODS USA, INC, a California corporation; REGGIE BARAIJAS, an individual, and DOES 1 through 50, inclusive, REQUEST TO STAY THE ACTION Jaynpary ( 2619 Date: Nowember-8, 2018 Time: 8:30 a.m. Dept: 37 Judge: Hon. David S. Cunningham III er ’ S a M m S p N e N e Me N n N d N d Defendants. 1, Bertha Caldera, declare as follows: 1s I am the Human Resources Manager of Defendant Bakkavor Foods USA, Inc. (“Defendant”). 2. I have personal knowledge of the facts set forth within this Declaration and if called as a witness, could and would competently testify thereto. 3. Defendant is an international fresh prepared foods supplier. Defendant manufactures and markets a wide variety of fresh prepared [ood products for the retail market specializing in meals, salads, dips, soups, and sauces. 4. I have been employed, full-time, by Defendant since January 20, 2018 and have been employed as Defendant’s Human Resources Manager, for the last 8 months. In this role, I have been involved in various aspects of Defendant’s business, including the hiring and retention N . . DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND REQUEST TO STAY THE ACTION Go rd on Re es Sc ul ly Ma ns uk ha ni , L L P 3m "3v "LVL/1155896/3925 /16342346v.1 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, CA 90 07 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of employees, as well as the implementation of various policies and procedures relating to Defendant’s employees. Iam also familiar with the typical contents of the employee files and records maintained by Defendant. 4, Plaintiff was employed as a line operator in the savory department from on or about October 5, 2015 to July 31, 2017. 5. Prior to commencing employment, on October 3, 2015, Plaintiff signed an arbitration agreement. The signed agreement is maintained by Defendant in the ordinary course of business. A true and correct copy of the executed arbitration agreement is attached hereto as Exhibit 1. 6. In the ordinary course of business, Defendant requests that all of its employees execute an arbitration agreement at the commencement of their employment with Defendant. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 0 day of Sorstenterol 8, at Carson, California. @85v 17 °° 2- DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND REQUEST TO STAY THE ACTION EXHIBIT 1 (J) BAKKAYOR USA AT-WILL ACKNOWLEDGMENT AND ARBITRATION AGREEMENT BAKKAVOR FOODS USA, Inc, has recently undertaken a review of its employment practices and policles. As part of that review, TCOR has recently revised its Employee Manual, The Employee Handbook sets out specifically that employment with Bakkavor is “at-will”. The purpose of this Acknowledgement Is to clarify that term, and to obtain your acknowledgement that you understand the nature of at-will employment. Bakkavor Foods USA, Inc. has also concluded that an arbitration of any disputes between itself and its employees would be in the claims, except claims for worker's compensation benefits, will be submitted to binding arbitration. The terms of the arbitration are set forth below, and you must read them carefully, Bakkavor Foods USA, Inc. may, at any time and for any reason, modify or change any of its employment policies, Normally, you will be given reasonable advance notice before any change Is effective. However, from time to time, change, and will be required to immediate comply with the new policy. Your continued employment after notice of any modifications or changes will confirm your acceptance of, and agreement to abide by, the modification or changes. Your employment at Bakkavor Foods USA, Inc., the Employee Manual, and all policies of Bakkavor Foods USA, Inc. are subject to the following two agreements that constitute conditions of employment. No employee or officer of TCOR may modify or change these agreements, in any fashion, except by a written agreement that must be approved by the TCOR Board of Directors ta be effective. 1. AT-WILL EMPLOYMENT . . . Your employment with Bakkavor Foods USA, Inc. Is “at-will”. What “at-will” means Is that either you or TCOR may terminate the employment relationship at any time, with or without reason or cause, THERE CAN BE NO MODIFICATION OF THIS AT-WILL RELATIONSHIP except by way of a written employment contract, signed by you and the President of Bakkavor Foods USA, Inc., and then approved by the Bakkavor Foods USA, Inc. Board of Directors, Except by such a written contract, no supervisor, agent or employee of Bakkavor Foods USA, inc. has the authorlty to change, or promise to change, the at-wil) relationship, 2. ARBITRATION OF DISPUTES Bakkavor Foods USA, Inc. and you agree that any dispute shall be submitted to binding arbitration before a neutral arbitrator. The California Arbitration Act (Title 9 of the California Code of Civil Procedure {CCP), §§1280 et seq, as amended) shall govern the entire arbitration process, unless the claim Is governed exclusively by federal statutory law. In that event, the Federal Arbitration Act (9 United States Code §1 et seq., as amended) shall control, except as otherwise provided below. Bakkavor Foods USA, Inc. and you agree that, except for (a) injunctive relief allowed below and {b) claims for worker's compensation benefits, this arbitration procedure will be the exclusive means of redress for any and all disputes or claims between you and TCOR, By way of example only, such claims or disputes would include claims under federal, state and local statutory or common law such as: wrongful termination, discipline or demotion; claims alleging violation EMPLOYEE INITIALS : SU of public palicy; claims Involving trade secrets, confidential information, or rkplace privacy; claims involving discrimination, harassment, libel or ¢ der; claims arising under statutory schem.. Such as the Fair Employment and Housing Act, Title VII of the of the Civil Rights Act, the Americans with Disabilities Act, Immigration Control and Reform Act, Age Discrimination in Employment Act, California or Federal Family Rights Act; claims related to wage and hour laws; unfair business practices; as well as regulatory schemes adopted by local governments or jurisdictions. In agreeing to arbitration, both TCOR and you expressly waive the right to a jury trial. The conduct of the arbitration proceeding shall be in accordance with Ccp Chapter 3 of Title 9 (CCP §§1282 et seq.) with the following exceptions: (1) both you and Bakkavor Foods USA, Inc. shall have the right to take pre-arbitration depositions for purposes of discovery or to preserve testimony, and to compel the production of books, documents or records, pursuant to CCP §1283; and {2) TCOR shall have the sole responsibility to pay the expenses and fees of the neutral arbitrator, together with the other fees and expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees incurred by a party for his/her own benefit, unless the statutory scheme under which the claim is presented allows the prevailing party to collect such fees. CCP §1283.05 is a part of this agreement to arbitrate. : The arbitrator shall have discretion to award monetary damages and to award or fashion any other relief that may be granted under any applicable federal, state, or local statutes, regulations, ordinancas, and common law under which a claim is submitted. The arbitrator shall be required to issue a written dedsion setting forth the essential findings and conclusions upon which the award is based. The award is subject to confirmation, correction of vacation as provided in CCP Chapter 4 of Title 9 (CCP §5§1285 et seq.). The. arbitration shall take place in Los Angeles County, California. The arbitrator shall be selected in accordance with American Arbitration Association, or such other alternate dispute resolution organization as the parties may agree to, rules and procedures. In the event that either you or TCOR reasonably belleve that a temporary restraining order, injunction, or other equitable relief is necessary to preserve rights, property, confidentiality or privacy pending the arbitration of any dispute, then either you or TCOR may make application for such relief in any court of competent jurisdiction. Any relief to be granted by the court must take into account the requirement that the underlying dispute be arbitrated under this arbitration provision. WHETHER OR NOT YOU SIGN BELOW, YOUR CONTINUED EMPLOYMENT AFTER NOTICE OF THE ARBITRATION PROVISIONS ABOVE WILL CONFIRM THE AGREEMENT OF YOU AND TCOR TO ARBITRATE ALL DISPUTES. ~THE REST OF THIS PAGE IS BLANK~ -SIGNATURES APPEAR ON THE NEXT PAGE~ EMPLOYEE INITIALS : S. C ACKNOWLEDGEMENT I'acknowledge receipt of the Bakkavor Foods USA, Inc. Employee Manual, and notice of the arbitration provisions contained above. | understand that | have the responsibility to read the Manual, comply with the policies and practices that are listed in the Manual, and If | have any questions or need explanation to contact the Bakkavor Foods USA, Inc. Human Resources Department. l understand and agree that my employment with Bakkavor Foods USA, Inc. Isat-will, oh A ._lol3lis Employee's Signature Date ARBITRATION AGREEMENT Both Bakkavor Foods USA, Inc. and the undersigned employee agree to arbitrate all disputes arising between then according to the arbitration provisions set forth above. LL | wll Employee's Signature Date ¥ lo]oz) ic Bakkavor Foods USA, Inc. Date w: Mum (alleys *ONE COPY FOR EMPLOYEE-SIGN AND DATE *ONE COPY FOR EMPLOYER-SIGN AND DATE ;.& EMPLOYEE INITIALS : ’ EXHIBIT “B” Go rd on Re cs Sc ul ly Ma ns uk ha ni , LL P 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, C A 90 07 1 No o e 3 O N t n B W N Y ee N N N RN N N R N R em ee e s e s e m a e s e d e t b a co NN O Y nn B W N = QO D 0 C N t h Rd W N e S ROGER M. MANSUKHANI (SBN: 164463) STACEY M. COOPER (SBN: 226012) JAMES M. HESTER (SBN: 122133) GORDON REES SCULLY MANSUKHANI, LLP 633 West Fifth Street, 52nd Floor Los Angeles, CA 90071 Telephone: (213) 576-5000 Facsimile: (213) 680-4470 Attorneys for Defendant BAKKAVOR FOODS USA, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CASE NO. BC700615 SUPPLEMENTAL DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT BAKKAVOR FOODS USA, INC.’S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND REQUEST TO STAY THE ACTION SABRINA CEJA, an individual, Plaintiff, Vs. BAKKAVOR FOODS USA, INC, a California corporation; REGGIE BARAJAS, an individual, and DOES 1 through 50, inclusive, Defendants. Date: January 11, 2019 Time: 8:30 a.m. Dept: 37 Judge: Hon. David S. Cunningham III Complaint Filed: April 5, 2018 Trial Date: Not Yet Sct I, Bertha Caldera, declare as follows: 1. I am the Human Resources Manager of Defendant Bakkavor Foods USA, Inc. (*‘Bakkavor™). 2. I have personal knowledge of the facts set forth within this Declaration and if’ called as a witness, could and would competently testify thereto. 3. As I stated in my previous declaration, I have been the Human Resources Manager since January 10, 2018 and I have been involved in various aspects of Defendant's -1- SUPPLEMENTAL DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 63 3 We st Fi ft h St re et , 52 nd Fl oo r Lo s An ge le s, CA 90 07 1 No 0 1 O Y nn Bs W N ) N N N N N N R N N m e e ke s e m a e a e t e d © ~ N E W -~ O O N y BR W L N =e © business, including the hiring and retention of employees, as well as the implementation of various policies and procedures relating to Defendant’s employees. 1am also familiar with the typical contents of the employee files and records maintained by Defendant. Plaintiff was employed as a line operator in the savory department from on or about October 5, 2015 to July 31,2017. 4, I have read the declaration of Sabrina Ceja in opposition to the motion to compel arbitration. While it is true that I was not employed with Bakkavor at the time she signed the arbitration agreement, I am very familiar with the customs and practices of Bakkavor. Ms. Ceja’s personnel file, along with other former employees, is maintained in the ordinary course of business. Itis 199 pages in length and is comprised of multiple sections, including a new hire section, 5. In the ordinary course of business, Bakkavor requests that all of its employees exccute an arbitration agreement at the commencement of their employment with Defendant. Prior to commencing employment, on October 3, 2015, Plaintiff signed an arbitration agreement. The signed agreement is maintained by Bakkavor in the ordinary course of business. A true and correct copy of the executed arbitration agreement is attached hereto as Exhibit 1. 6. As a point of clarification, Bakkavor was previously known as Two Chefs on a Roll, or TCOR. Several years ago, Bakkavor bought out TCOR and kept its name for a while. Over time, all of our documents were modified to eliminate references to TCOR, although some documents include some references to TCOR, such as the Arbitration Agreement. However, the logo at the top of the first page of the Arbitration Agreement is clearly Bakkavor, and not TCOR, and the signature block for the employer on the last page references Bakkavor Foods USA, Inc. Plaintiff also signed a separate acknowledgment on page three of the Arbitration Agreement that she understood and agreed that her “employment with Bakkavor Foods, USA, Inc.” was at will and the last paragraph on the third page, with the heading “Arbitration Agreement,” states as follows: “Both Balckavor Foods, USA, Inc. and the undersigned employee agree to arbitrate all disputes between them according to the arbitration provisions set forth above.” There can be no B. SUPPLEMENTAL DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION an i, L L P Fl oo r { 1 Lo s An ge le s, C A 90 07 1 { G o r d o n Re es Sc ul ly M a n s u k h 63 3 We st Fi ft h St re ct , 52 nd #G6142346v.1 OO eo N N Wn Bl W N B O N N N N N N N N N r = m t be d p t pe ed e d e d e a be md pe d o o ~1 (= ) w n + wa [3 8] bt << O o o ~I on w n + w No as oo doubt that Plaintiff understood that her employment was with Bakkavor. 1s With respect to Plaintiffs claim that she was “forced” to sign documents and was not given time to review them, it is the standard custom and practice at Bakkavor that either the HR Director or an HR specialist would sit down with the new hire, present the various employment documents to them, and answer any questions they may have. It is also the standard custom and practice that the new hire receives a copy of all the employment paperwork. In fact, the Arbitration Agreement itself states “ONE COPY FOR EMPLOYEE - SIGN AND DATE", “ONE COPY FOR EMPLOYER - SIGN AND DATE.” The HR specialist at that time was Myra Gallegos, who is no longer with the company, and the HR Manager at the time of Plaintiff's hire was Eldia Santana. Plaintiff could have asked Ms, Santana any questions that she may have had. 8. Also, while Plaintiff signed the arbitration agreement and other documents on Oclober 3, 2015, she signed an offer of employment on October 2, 2015. This document, which was on Bakkavor letterhead, and is attached hereto as Exhibit 2, said in relevant part, “Our company believes in arbitration. Enclosed is a copy of the Company agreement on arbitration.” Since Plaintiff did not sign the arbitration agreement until October 3, 2015, she had a full day to review it or ask questions, although Plaintiff admits in her declaration that she did not want to ask any questions. 9S. Regarding Plaintiff's claim that she did not understand English well, there are many Spanish speakers at Bakkavor and it is our standard practice and custom to assist employees who have difficulty with English. Plaintiff filled out and completed an employment application that was in English, with the Bakkavor logo at the top. A copy of the employment application is attached hereto as Exhibit 3. She answered several questions and stated that she had attended Banning High School. I declare under penalty of perjury under the laws of the State of California that the anuary, 2019, at Carson, California. 41800 PE foregoing is true and correct. Executed this 3* day of LVIO50 ACBL Bertha Caldera 3. SUPPLEMENTAL DECLARATION OF BERTHA CALDERA IN SUPPORT OF DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION EXHIBIT “1” (0) BAKKAYOR USA. AT-WILL ACKNOWLEDGMENT AND ARBITRATION AGREEMENT BAKKAVOR FOODS USA, Inc, has recently undertaken a review of its employment practices and policles. As part of that review, TCOR has recently revised its Employee Manual, The Employee Handbook sets out specifically that employment with Bakkavor Is “at-will”, The purpose of this Acknowledgement Is to clarlfy that term, and to obtain your acknowledgement that you understand the nature of at-will employment, ’ Bakkavor Foods USA, Inc. has also concluded that an arbitration of any disputes batween itself and its employees would be In the mutual interest of ail parties. Therefore, Bakkavar Foods USA, Inc. has modified its policies to provide that ali claims, except claims for worker's Compensation benefits, will be submitted to binding arbitration. The terms of the arbitration are set forth below, and you must read them carefully. Bakkavor Foods USA, Inc. may, at any time and for any reason, modify or change any of its employment poilcles, Normally, you will be given reasonable advance notice before any change Is effective. However, from time to time, Bakkavor Foods USA, Ing, may change a policy without advanca notice. tn such an event, you will be notified of the change, and will be required to immediate comply with the new policy. Your continued employment after notice of any modifications or changes will confirm your acceptance of, and agreement to abide by, the modification or changes. Your employment at Bakkavor Foods USA, Inc, the Employee Manual, and all policies of Bakkavor Foods USA, Inc, are subject to the following two agreements that constitute condltions of employment. No employee or officer of TCOR may modlfy or change these agreements, in any fashion, except by a written Bgresment that must be approved by the TCOR Board of Directors to be effective. 1. AT-WILL EMPLOYMENT . . . Your employment with Bakiavor Foods USA, Inc. Is “at-will", What “at-will means is that either you or TCOR may terminate the employment relationship at any time, with or without reason or cause. THERE CAN BE NO MODIFICATION E AT-WILL RELATIONSHIP except by way of a written employment contract, signed by you and the President of Baklavor Foods USA, inc, and then approved by the Bakkavor Foods USA, Inc. Board of Directors. Except by such a written contract, no supervisor, agent or employee of Bakkavor Foods USA, Inc, has the authority to change, or promise to change, the at-wii) relationship. 2, ARBITRATION OF DISPUTES Bakkavor Foods USA, Inc, .and you agree that any dispute shall be submitted to binding arbitration before a neutral arbitrator. The Califomila Arbitration Act (Title 9 of the California Code of Civil Procedure (CCP), §61280 et seq, as amended) shall gavarn the entire arbitration process, unless the claim Is governed exclusively by federal statutory law. In that event, the Federal Arbitration Act (9 United States Cade §1 et seq., as amended) shall control, except as otherwise provided below. Bakkavor Foods USA, Inc. and you agree that, except for (a) injunctive relief allowed below and {b) claims for worker's Compensation benefits, this arbitration procedure will be the exclusive means of redress for any and all disputes or claims between you and TCOR, By way of example only, such daims or disputes would include claims under federal, state and local statutory or common law such as: wrongful termination, discipline or demotion; claims alleging violatlon EMPLOYEE [NITIALS : 4 Ls of. public “policy; claims Involving trade secrets, confidential information, or +rkplace privacy; claims involving discrimination, harassment, libel or « der; claims arising under statutory schem.. such as the Fair Employment and Housing Act, Title VII of the of the Civil Rights Act, the Americans with Disabilities Act, Immigration Control and Reform Act, Age Discrimination in Employment Act, California or Federal Family Rights Act; claims related to wage and hour laws; unfalr business practices; as well as regulatory schemes adopted by local governments or jurisdictions. In agreeing to arbitration, oth TCOR and you expressly waive the right to ajury trial. The conduct of the arbitration proceeding shall be In accordance with ccp Chapter 3 of Title 9 (CCP 561282 et seq.) with “the following exceptions: (1) both you and Bakkavor Foods USA, Inc. shall have the right to take pre-arbltration depositions for purposes of discovery or to preserve testimony, and to compel the production of books, documents or records, pursuant to CCP §1283; and (2) TCOR shall have the sole responsibility to pay the expenses and fees of the neutral arbitrator, together with the other fees and expenses of the arbitration Incurred or approved by the neutral arbitrator, not including counsel fees Incurred by a party for his/her own benefit, unless the statutory scheme under which the claim Is presented allows the prevailing party to collect such fees. CCP §1283.05 Is a part of this agreement to arbitrate. J The arbitrator shall have discretion to award monetary damages and to award or fashion any other rellef that may be granted under any applicable federal, state, or local statutes, regulations, ordinances, and common law under which a claim is submitted. The arbitrator shall be required to issue a written dedsion setting forth the essential findings and conclusions upon which the award is based. The award Is subject to confirmation, correction of vacation as provided in CCP Chapter 4 of Title 9 (CCP §§1285 et seq.). The. arbitration shall take place In Los Angeles County, California. The arbitrator shall be selected In accordance with American Arbitration Association, or such other alternate dispute resolution organization as the parties may agree to, rules and procedures. In the event that either You or TCOR reasonably belleve that a temparary restraining order, Injunction, or other equitable relief Is necessary to preserve rights, property, confidentiality or privacy pending the arbitration of any dispute, then either you or TCOR may make application for such relief in any court of competent jurisdiction. Any relief to be granted by the court must take Into account the requirement that the underlying dispute be arbitrated under this arbitration provision. WHETHER OR NOT YOU SIGN BELOW, YOUR CONTINUED EMPLOYMENT AFTER NOTICE OF THE ARBITRATION PROVISIONS ABOVE WILL CONFIRM THE AGREEMENT OF YOU AND TCOR TO ARBITRATE ALL DISPUTES. ~THE REST OF THIS PAGE IS BLANK~ ~SIGNATURES APPEAR ON THE NEXT PAGE EMPLOYEE INITIALS ; s.C ACKNOWLEDGEMENT l acknowledge receipt of the Bakkavor Foods USA, Inc. Employee Manual, and notice of the arbitration provisions contained above. | understand that | have the responsibility to read the Manual, comply with the policies and practices that are listed in the Manual, and If | have any questions or need explanation to contact the Bakkavor Foods USA, Inc. Human Resources Department, | understand and agree that my employment with Bakkavor Foods usa, inc. Isat-will, bh A . _lola)is Employee's Signature Date ARBITRATION AGREEMENT Both Bakkavar Foods USA, Inc. and the undersigned employee agree to arbitrate all disputes arising between then according to the arbitration provisions set forth above. ‘ AA =z | lof 3 I Employee's Signature Date ¥ lo]bal ic “hakkavor Foods USA, Inc. Date BY : WTA Cully x *ONE COPY FOR EMPLOYEE-SIGN AND DATE *ONE COPY FOR EMPLOYER-5IGN AND DATE c.« EMPLOYEE INITIALS ; ’ EXHIBIT “2” y 1 - gens (’ YOR USA October 2, 2015 Ms. Sabrina Ceja Hand Out RE: Employment Offer with Bakkavor Foods USA, Inc. Dear Christina, | am pleased to offer you the position of Support I. This position reports directly to Savory Supervisor, German Marquez. Should you accept the Company's offer under these terms, please so indicate by signing and returning a copy of this letter via facsimile or email no later than 10/02/2015. Following are the terms of your employment with the Company: * Your compensation package has been structured as follows: o Your biweekly salary will = {TREE o This position is hourly non-exempt under the Fair Labor Standard Act. o Subsequent salary adjustments and modifications are at the discretion of the Company's management but typically are adjusted annually. e Your starting date will be October 5% 2015. ¢ You are eligible to receive One (1) week of vacation time and four days (4) of PTO/SICK according to our policies set in our Employee Handbook. We will provide you with a copy of this Handbook on or before your start date. s You will be able to participate in our Quarterly 2015 Bonus Program and under the terms and conditions of this program, you will be eligible to earn up to 10% of your annual income as a bonus. ¢ You will be eligible to participate in the company’s 401(k) program after completing the 90 days of introductory period. You will be eligible to participate on the first day of the following quarter after completing the introductory period. e Insurances You will be eligible for company sponsored life and disability insurance. The company also provides medical, dental and vision care. Your medical coverage will be effective on the first of the month, following 60 days of continuous employment. You will receive package describing all the medical/dental/vision plans before October 2015. You will be provided an Immigration and Naturalization Form I-9. Please complete Section One and return it along with your signed copy of this letter. You will need to bring supporting documents on your starting date to verify your eligibility for employment. 1 1 () BAKKAYOR USA Employment Offer Page 2 Please review the documents listed in Section Two of the form. You will need either one of the documents in List A or one document from List B and List C. All documents must be originals and they will be returned to you on your first day. Enclosed in ad dition is the background check form to be signed and returned along with the other forms. Your employment with the company is At Will and accordi ng to the terms and conditions previously outlined. Nothing contained in this letter, or in the subsequent statements, policies, actions, or inactions of the co mpany during the course of your employment shall be deemed to give rise to an express or implied agreement to the contrary. The employment status described above can be altered only by a written agreement executed by our President/Chief Executive Officer. Our Company believes In Arbitration. Enclosed is a copy of the Company agreement on arbitration. Also enclosed are copies of the Company's agreements on Intellectual Property Rights and Conflict of Interest. Please review the agreemen ts and return a signed copy of each along with this offer letter. This offer of employment is valid under the terms and condit ions outlined above provided and is contingent to negative drug screening results from the medical facility pre viously chosen by Bakkavor Foods USA, as well as the results of a background check. Sk On behalf of Bakkavor Foods USA, | look forward to welcomin g you as part of the team. We have ambitious plans for the future and | am confident that you will be a va luable asset to our future success. | look forward to seeing the development of your own career aspirations as we grow in the United States. Sincerely, Myra A. Gallegos Human Resources Specialist Accepted as to the terms and conditions set out above. Sores Cora Name he 4 Signature 10 Je [\S Date | PLEASE SIGN AND DATE ORIGINAL AND RETURN ORIGIN AL TO M YRA GALLEGOS @ MGALLEGOS@BAKKAVOR.US EXHIBIT “3” - 1, ) (J BAKIGAYOR USA +18201 CENTRAL AVENUE CARSON CA 90746 // P : [310] 436-1600 // F; [310} 436-1714 11 wuw.BAKKAVORCOM EMPLOYM ENT APPLICATION THIS IS A DRUG FREE WORKPLACE Bakkavor Foods USA, Inc. Is an Equal Employment Opportunity employer. We conduct all employment-related activities without regard to race, color, sex, religion, age, national origin, disability, veteran status, sexual orlentation or any other classification protected by applicable State or Federal employment discrimination laws. Bakkavor Foods USA, Inc. welcomes diversity i n the workplace. PLEASE PRINT: Al Blane must be completed; “sea resume” Is not permissible. ; APPLICANT ers re Cera | Sabrina Lb LastName FirstMame ML LIA ' List Any Other names Used Soxtal Security Number (options) 2A 4 TT uA Homa Phone Cell Phone ! Emall Street Address Apartment / Unit 5 # Clty Sate Zip Code Are you eligible to work in the U.S. and would you be able to provide the necessary documents of proofof Yes No the legal right to work upon hire? O O Are you under 187 0 Yes [VNo Ifyou are under 18, you may be required to provide a work permit upon hire. Instructions for answering the following question regarding your criminal record history : Do not respond "yes" concerning the following: arrests or detentions that did not result in convict; referrals to, and participation In, any pretrial or past-trial diversion program; marfjuana-selated convictions more than two years old; convictions for which the record has been Judlcially ordered sealed, expunged, or statutorily eradicated. Have you ever been convicted of a crime? [| Yes [Mo If, YES what was (were) the offense(s)? , date(s), place(s} of conviction, and disposition of tha case(s). A CONVICTION RECORD WILL NOT NECESSARILY BE A BAR TO EMPLOYMENT, Factors such as age at thatime of the offense, type of offense and relevance to the job for which you are applying, serlousness and nature of the offense will be taken Into account. EMPLQYMENT INTEREST Type(s) of employment you are seeking : 0 Regular Od Temporary Full Time [1 Part Time Operator” Pasttion Dasired Salary Desired Date Avakable Who reffered you to this Job/Bakkavor, or how did you hear about thisopportunity ?_Spplecl Slaflng. DUCATION AND TRA NAME AND LOCATION (CITY & STATE) MAIOR DEGREE MONTH / YR High School Bann Nah schodl [es [no College ~ pe [ves [No Techinical/ Trade [ves [Ino ~~ Se eT A Ce Lent Lh. Is there afly additional information you would like to provide to further assist us in our hiring decision? + I RS eZ eae) I certify that the information contained In this application is correct to the best of my knowledge, and | understand that any misstatement or omisslon of information Is grounds for ending the hiring process or dismissal. | authorize verification of information provided on this application; and authorize the references listed above to give youall pertinent information concerning my previous employment; and release all parties from all liability for any damage that may result from furnishing same to Bakkavor Foods USA, Inc, In consideration of my employment, | agree to conform to the rules and regulstions o Bakkavor Foods USA, Inc. | further agree that either | or the Company may terminate my employment with or without catse and with or without prior notice, at any time. Finally, { understand that no representative of the Company other than the President of the Company has the authority to enter into any agreement for employment for any specified period of time, or to otherwise alter the foregoing. Sabrina Ces AL 7 ola] APPLICANT PRINTED NAME APPLICANT SIGNATURE DATE SIGNED EXHIBIT “C” Tentative Rulings - Online Services - LA Court Page 1 of 7 Home Espafiol Tidngvist SEO FI huybptl Search Online Services Forms, Filings & Files ~~ Self-Help Divisions Jury General Info Pay Fines, Search Records... Forms, Filing Fees... Sall-Rep, Info, FAQs... Civil Criminal, Family... Jury Duty Portal, Q&A... Courthouses, ADA ... a ONLINE SERVICES Tentative Rulings DEPARTMENT 37 LAW AND MOTION RULINGS Case Number: BC700615 Hearing Date: January 11,2019 Dept: 37 CASE NAME: Ceja v. Bakkavor Foods USA, Inc., et al. CASE NO.: BC700615 HEARING DATE: 1/11/19 DEPARTMENT: 37 CALENDAR NO.: 3 FILING DATE: 4/5/18 FSC/TRIAL DATE: None NOTICE: OK SUBJECT: Motion to Compel Binding Arbitration and Request to Stay the Action MOVING PARTY: Defendants Bakkavor Foods USA, Inc.[1] OPPOSING PARTY: Plaintiff Sabrina Ceja COURT'S TENTATIVE RULING The Court DENIES the motion without prejudice. Counsel for Plaintiff to give notice. STATEMENT OF THE CASE This employment action discrimination and wrongful termination action arises in connection with Plaintiff Sabrina Ceja (“Ceja")'s employment with Bakkavor Foods USA, Inc. (“Bakkavor”). Plaintiff alleges that her supervisor Defendant Reggie Barajas (“Barajas”) sexually harassed and discriminated against her including by making sexual comments, repeatedly touching her in unwanted ways, and exposing himself to her and attempting to force her to perform a sexual act. According to Plaintiff, she lodged complaints about Barajas and his conduct to managing and supervisory employees, including “HR specialist” Myra Gallegos (“Gallegos”), who allegedly told her that there was http://www .lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 2 of 7 nothing that could be done about her complaints. Barajas allegedly retaliated against Plaintiff by interfering with her work, while Bakkavor allegedly forced her to take leave-claiming that her complaints were not related to harassment but were related to her personal affairs and her autistic children. According to Plaintiff, Bakkavor unlawfully terminated her employment on February 20, 2017. In the Complaint, Plaintiff alleges eleven causes of action for: (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA"), (2) sexual harassment - hostile work environment in violation of the FEHA; (3) sexual discrimination in violation of the FEMA; (4) violation of the Ralph Civil Rights Act (the “Ralph Act,” Civ. Code, § 51.7); (5) associational disability discrimination in violation of the FEHA; (6) retaliation in violation of the FEHA; (7) wrongful discharge in violation of the FEHA; (8) wrongful discharge in violation of public policy; (9) failure to prevent discrimination or harassment in violation of the FEHA; (10) failure to investigate/take corrective action in violation of the FEHA and (11) intentional infliction of emotional distress (“IIED"). Plaintiff alleges the third and fifth through tenth causes of action against Bakkavor and alleges the first, second, fourth and eleventh causes of action against both Defendants. Defendant Bakkavor now moves to compel Plaintiff's claims to arbitration and to have this action stayed pending the completion of arbitration. Plaintiff opposes the motion. EVIDENTIARY OBJECTIONS Declaration of Bertha Caldera (“Caldera Decl.”) Overruled: 2-3 Sustained: 1 Objection 1: Sustained. Declarant states that she was employed as Defendant's Human Resources Manager since January 20, 2018-which was after the date of Plaintiff's alleged termination. Declarant fails to demonstrate personal knowledge that Plaintiff signed the document in question and would only be able to attest that the signed document is in Plaintiff's employment records. Objections 2, 3: Overruled. Declarant establishes foundation and personal knowledge based on her attested position and familiarity with the contents of the employee files and records maintained by Defendant. This is not an improper legal conclusion or expert testimony. Declarant authenticates the document. The statement is not submitted to prove the content of the writing but to authenticate the document; does not violate the secondary evidence rule. (See Evid. Code, § 1523, subds. (a), (d).) DISCUSSION I. Legal Standard http://www.lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 3 of 7 Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 (Concepcion).) Accordingly, whether an agreement is governed by the California Arbitration Act ("CAA") or the Federal Arbitration Act (“FAA”), courts resolve doubts about an arbitration agreement's scope in favor of arbitration. (Moncharsh, at p. 9; Comedy Club, Inc. v. Improv West Assocs. (Sth Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general [citation]"].) “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Higgins v. Sup. Ct. (2006) 140 Cal.App.4th 1238, 1247.) “Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if the court determines that an agreement to arbitrate the controversy exists." (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal. App.4th 50, 59, quoting Code Civ. Proc., § 1281.2.) Accordingly, “when presented with a petition to compel arbitration, the court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” (Avery, ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. {/d., 218 Cal. App.4th at p. 71.) As with any other specific performance claim, “a party seeking to enforce an arbitration agreement must show the agreement's terms are sufficiently definite to enable the court to know what it is to enforce.” (/bid., internal citations omitted) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (/bid) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, § 1368.) If uncertainty exists, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, § 1654.) As the party seeking to compel arbitration, Defendant Bakkavor bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (Engalla).) It would then be Plaintiffs burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See ibid.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (/bid.) I. Existence of a Valid Arbitration Agreement As with any contract, mutual assent or consent is necessary for the formation of a valid arbitration agreement. (Civ. Code, §§ 1550, 1565.) “Consent is not mutual, unless the parties all agree upon the same thing in http://www.lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 4 of 7 the same sense.” (Civ. Code, § 1580.) The moving party bears the initial burden of showing the existence of an agreement to arbitrate by a preponderance of the evidence. (Mitri v. Arnel Mgmt. Co. (2007) 157 Cal.App.4th 1164, 1169 (Mitri) ["Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.”].) Defendant Bakkavor contends that a document titled “At-Will Acknowledgement and Arbitration Agreement” (the “Arbitration Agreement”) is in Plaintiff's personnel file and bears her signature. (Caldera Decl. 9 5. Ex. 1.) The Arbitration Agreement states, in relevant part: Bakkavor Foods USA; Inc. has also concluded that an arbitration of any disputes between itself and its employees would be in the mutual interest of all parties. Therefore, Bakkavor Foods USA, Inc. has modified its policies to provide that all claims, except claims for worker's compensation benefits, will be submitted to binding arbitration. ... Your employment at Bakkavor Foods USA, Inc., the Employee Manual, and all policies of Bakkavor Foods USA, Inc. are subject to the following two agreements that constitute conditions of employment. No employee or officer of TCOR may modify or change these agreements, in any fashion, except by a written agreement that must be approved by the TCOR Board of Directors to be effective. ... 2. ARBITRATION OF DISPUTES Bakkavor Foods USA, Inc. and you agree that any dispute shall be submitted to binding arbitration before a neutral arbitrator. The California Arbitration Act (Title 9 of the California Code of Civil Procedure (CCP), 8581280 et seq., as amended) shall govern the entire arbitration process, unless the claim is governed exclusively by federal statutory law. In that event, the Federal Arbitration Act (9 United States Code § 1 et seq., as amended) shall control, except as otherwise provided below. Bakkavor Foods USA, Inc. and you agree that, except for (1a) injunctive relief allowed below and (b) claims for worker's compensation benefits, this arbitration procedure will be the exclusive means of redress for any and all disputes or claims between you and TCOR. By way of example only, such claims or disputes would include claims under federal, state and local statutory or common law such as: wrongful termination, discipline or demotion; claims alleging violation of public policy . . . claims involving discrimination, harassment, . .. claims arising under statutory schemes such as the Fair Employment and Housing Act, Title VII of the Civil Rights Act... .. (Caldera Decl. Ex. 1.) Defendant Bakkavor argues that all of Plaintiff's claims fall within the scope of the agreement. Plaintiff admits that she remembers being forced to sign documents when offered direct employment with Bakkavor, and she does not challenge the validity of her signature on the Arbitration Agreement. (Declaration of http://www lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 5 of 7 Sabrina Ceja (“Ceja Decl.”) 9 6.) Plaintiff similarly does not demonstrate that the causes of action at issue do not fall within the claims subject to the agreement. Plaintiff instead contends that the agreement is invalid because she learned Spanish as her first language and because she does not have the ability to understand complicated legal documents that are presented to her in English on her own. (/d. at 99 3, 6.) Plaintiff's proficiency with English, however, does not speak to the existence of the Arbitration Agreement but rather its enforceability and procedural unconscionability. This argument is insufficient to demonstrate the nonexistence of the Arbitration Agreement. Plaintiff next contends that the Arbitration Agreement is inconsistent and uncertain as to the Parties bound under the agreement. (Opp. 7.) Plaintiff cites Ladas v. California State Automobile Association (1993) 19 Cal.App.4th 761, 770 (Ladas) for the proposition that a contract is void and unenforceable where it is “so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained.” (Opp. 7.) And Plaintiff argues that the Arbitration Agreement leaves uncertain the party or parties that are bound by the agreement, given that it refers to Bakkavor at times but also refers to “TCOR,” which is an unknown person or entity. (Opp. 7, citing Caldera Ex. 1.) Bakkavor responds that it was previously known as Two Chefs on a Roll or TCOR and that it modified all documents over time to replace the old name with its new name BAkkavor. (Reply 1-2.) Bakkavor further contends that the language of the first page and the signature block clearly indicate that the agreement was with Bakkavor. After reviewing the Arbitration Agreement and the parties’ arguments, the Court finds that the Arbitration Agreement clearly indicates that it is intended to be an agreement between Plaintiff and Bakkavor and is not “so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained.” (See Ladas, 19 Cal. App.4th at p. 770.) Accordingly, the Court will not deny the motion on this basis. For these reasons, the Court finds that Defendant Bakkavor meets its initial burden to demonstrate the existence of an arbitration agreement between it and Plaintiff that covers the scope of Plaintiff's claims. i. The Arbitrability of Plaintiffs Claims against Barajas and Joinder As Defendants have met their initial burden on the subject petition, Plaintiff bears the burden to prove by a preponderance of the evidence any fact necessary to his opposition. {(Engalla, supra, 15 Cal.4th at p. 972.) Plaintiff contends that the motion must be denied because she did not agree to arbitrate her claims against Defendant Barajas and because he has not joined in Bakkavor's motion. (Opp. 7.) Plaintiff argues that arbitration is a matter of contract and that a party cannot be required to submit to arbitration any dispute which she has not agreed so to submit. (/bid., citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 582 (United Steelworkers).) Plaintiff further notes that the Arbitration Agreement does not require arbitration with Bakkavor's agents, current employees or former employees and that it does not provide a basis to require arbitration of her claims against Barajas. (Opp. 8.) http://www lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 6 of 7 Defendant Bakkavor argues that Barajas intends to join the motion. (Reply 2.) As stated in footnote 1 above, however, Barajas did not join in the initial motion and his attempted joinder on reply is untimely. {See Code Civ. Proc., § 1005.) Furthermore, because Bakkavor's moving papers did not argue or present evidence of the existence of an arbitration agreement between Plaintiff and Barajas, Barajas’ joinder to the subject motion would be insufficient to demonstrate the existence of an arbitration agreement between Plaintiff and Barajas or the arbitrability of those claims.[2] Pursuant to Code of Civil Procedure, section 1281.2, subdivision (c), a court may deny a petition to compel arbitration if it determines that “[a] party to the arbitration agreement is also a party to a pending court action... with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Code Civ. Proc., § 1281.2.) As alleged in the Complaint, Plaintiff's sexual harassment claims against Barajas underlie and are central to her claims against Bakkavor, and Bakkavor itself admits that the resolution of these claims are necessary for a complete resolution of this matter. (See Reply 7.) The Court therefore finds that there is a strong possibility that the separate arbitration of Plaintiff's claims against Bakkavor could lead to conflicting rulings on common issues of law or fact. Accordingly, the Court DENIES the subject motion. (See Code Civ. Proc., § 1281.2, subd. (c).) Having denied the motion on this basis, the Court need not address the parties’ remaining arguments regarding unconscionability. Vv. Conclusion In sum, Defendant meets its burden to demonstrate the existence of an arbitration agreement between Plaintiff and Bakkavor that covers Plaintiff's claims. Plaintiff, in turn, meets her responsive burden to demonstrate that the motion should be denied due to the possibility of conflicting rulings from separate proceedings against Bakkavor and Barajas. The Court therefore DENIES the motion without prejudice. Any renewed motion to compel by Defendants must include or be joined by Barajas and must demonstrate the existence of an arbitration agreement between Plaintiff and Barajas or legal authority that establishes that Plaintiff's claims against Barajas fall within the scope of the Arbitration Agreement and are arbitrable.[3] [1] Defendant Reggie Barajas filed a notice of joinder to Defendant Bakkavor's reply on January 7, 2019. Defendant Barajas did not file a joinder to the original motion and the filed joinder to the reply was not filed within the times set forth for moving papers under Code of Civil Procedure, section 1005. These documents are thus untimely, and the Court will exercise its discretion to disregard these late-filed papers. (See Cal. Rules of Court, rule 3.1300(d).) [2] Defendant Bakkavor raises arguments to argue that Barajas can enforce the Arbitration Agreement. Bakkavor did not raise these arguments in its moving papers and the Court therefore need not consider them on the subject motion. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [Points raised for the first time in a reply brief will http://www .lacourt.org/tentativeRulingNet/ui/Result.aspx?Referer=Index 1/10/2019 Tentative Rulings - Online Services - LA Court Page 7 of 7 ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”].} Nevertheless, the Court notes that the cited legal authority does not demonstrate that Plaintiff's individual claims against Barajas are arbitrable. Bakkavor cites Zakarian v. Bekov (2002) 98 Cal.App.4th 316, 325-327 (Zakarian) to argue that a party who is not a party to an arbitration agreement may be joined when it is necessary for a complete resolution of the matter. In Zakarian, the arbitration agreement specifically stated: “I also hereby consent to the intervention or joinder in the arbitration proceeding of all parties relevant to a full and complete settlement of any dispute arbitrated under this Agreement... ." {/d. at p. 323.) The Zakarian Court thus found that the parties agreed, by the terms of their contract, to submit the issue to arbitration. (See id. at pp. 325-326.) The Arbitration Agreement in the case at hand does not contain comparable language, and Zakarian is inapposite. Bakkavor also cites cases including Bak v. MCL Financial Group, Inc. (2008) 170 Cal.App.4th 1118, 1125-1126 (Bak) to argue that an agent of signatory can enforce an arbitration agreement or can be compelled to arbitrate even if he or she did not sign the agreement. (Reply 6.) While Defendant's cited cases hold that an agent can compel claims to arbitration when they are sued in their role as an agent; Plaintiffs sexual harassment claims against Barajas are asserted against him in his individual capacity. (See Gov. Code, § 12940, subd. (j)(3).) Bakkavor does not cite any legal authority for the proposition that an agent may compel a plaintiff's individual claims against him to arbitration, based on the agency relationship; as such, Bakkavor fails to meet its burden to demonstrate the existence of a valid arbitration agreement between Plaintiff and Barajas that covers Plaintiff's claims. [3] The Court notes that Defendants will bear the burden to demonstrate the existence of a valid arbitration agreement that covers Plaintiff's claims against Barajas on a renewed motion. 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