Filed 4/21/ 22 Palacios v. Nowhere Santa Monica CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CARIN PALACIOS,

Plaintiff and Respondent

,

v.

NOWHERE SANTA MONICA, LLC et al

.,

Defendant s and Appellants

. B309207

(Los Angeles County Super. Ct. No. 20STCV11880 )

APPEAL from an order of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed. De Castro Law Group, José

- Manuel A. de Castro and Lori V.
Minassian for Defendant s and Appellant s

. Pairavi Law, Edwin Pairavi and Joshua M. Mohrsaz for Plaintiff and Respondent.

________________________2 The plaintiff in this sexual harassment case (Carin Palacios) speaks no English, only Spanish. In 2018, when she was hired by

a ppellant Nowhere Santa Monica, LLC, doing business as Erewhon Market (Erewhon), she was asked to sign a document
that included a n arbitration agreement but she was shown only an English version of the agreement and had no opportunity to review it in Spanish . When Palacios sued Erewhon (and its payroll provider a ppellant Modern HR, Inc., which is included in our
references to Erewh on), Erewhon moved to compel arbitration. In opposition, Palacios and her attorney submitted declarations establishing that no Spanish language forms had ever been shown to Palacios, and that the only document produced by Erewhon during discovery was in E ngl ish . The motion to compel arbitration was denied, and Erewhon appeals from th at order. We affirm.

FACTS

Palacios went to work for Erewhon in 2018. About two or three weeks after she started, her supervisor told her she had to sign some documents in order to receive her paycheck. Palacios was taken to a computer, and her supervisor told her to type certain informati on into the computer (her name, date of birth, and social security number) at places indicated by the supervisor. The document was in English and no one explained its content to
Palacios.

After this lawsuit was filed, Palacios’ attorneys asked for a

cop y of Palacios’ personnel file . In response, Erewhon produced a
file that included an arbitration agreement electronically signed3

by Palacios’ supervisor, but not signed by Palacios . Erewhon did not produce any documents in Spanish.

Erewhon moved to compel arbitration. In support of its motion, Erewhon submitted the declaration of Michael Holmes (Modern HR’s v ice p resident of h uman r esources and b usiness
d evelopment) describing his familiarity with Modern HR’s online onboarding system for n ew hires and stating that Erewhon asks its new hires to sign “Erewhon’s Agreement to be Bo und by Alternative Dispute Resolution Policy,” which Ho l mes defines as the “Arbitration Agreement.” As exhibits to his declaration are a document Ho l mes describes as a copy of the English version
Arbitration Agreement and a Spanish version of the Arbitration Agreement translated by a certified Spanish language interpreter.

The English version purports to bear Holmes’ signature and
states “ ‘ Signed by CARIN PALACIOS a t 2018

- 05

- 14T117:09:23.531

- 05 : 00

. ’ ” It also recites, “Signed by Lopez, Isaac

at 2018:05

- 14T17: 5 0 :52.598

- 05:00

. ” The Spanish document does not contain any signature, but prints Holmes’ name and title and recites, in English, “ was signed at 3:09 p.m. GMT

- 7 on 05/14/2018 by CARIN PALACIOS. ”

Palacios opposed the motion, and submitted her own
declaration and her attorney’s declaration claiming that Palacios
had not signed any agreement and had not been given a Spanish language version of any document. Her attorney attached an English version of the arbitration agreement he had received from Erewhon in discovery, electronically signed by Isaac Lopez,4

Palacios’ manager, but not by Palacios, and purportedly bearing
Ho l mes’ signature.

The trial court sust ained Palacio’s objections to Ho l mes’ declaration on the grounds that Holmes lacked personal knowledge

, the document s lacked foundation, and Holmes’

statements were speculative because his exhibits were not
translated. The trial court noted the “various v ersions of the arbitration agreement” making it “unclear, which, if any, was the one arbitration agreement which would establish a sufficient meeting of the minds between the parties.” Erewhon’s motion was denied on September 29, 2020.

LEGAL DISCUSSION

Standard of Review. Where as here the trial court’s decision is based on the resolution of a factual dispute, we draw every permissible inference in favor of the trial court and will affirm if the order is supported by substantial evidence. ( Bannister
v. Marin i dence Opco, LLC (2021) 64 Cal.App.5th 541, 545; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1406.)

Substantial evidence supports the trial court’s order. Erewhon insists its showing in support of its motion to compel

ar bitration was “sufficient” and that, because arbitration is favored, its motion should have been granted. Erewhon ignores the fact that the trial court found there was no agreement to
arbitrate

— and the fact that Erewhon says there was an agreement is in sufficient to establish its existence, particularly in light of Palacios’ declaration stating that she was not provided5

anything in Spanish , statements supported by her attorney’s declaration that the only document produced by Erewhon during discovery is i n English.

At the hearing on the motion, Erewhon asked the trial court to deny its motion without prejudice so that it could locate the Spanish version supposedly signed by Palacios. Palacios objected and the trial court denied the request, explaining i n its written ruling that Erewhon had failed to authenticate the documents it relied on as the arbitration agreement. The trial court reasonably found there were too many unanswered questions about the terms
of the so

- called arbitration agreement and whet her Palacios had

an opportunity to review the documents in Spanish.

I n short, Erewhon did not meet its burden of establishing the existence of a valid arbitration agreement. ( F a gelbaum & Heller
LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.) More to the point, Erewhon did not establish the validity of Palacios’ electronic signature. (Civ

. Code, §§ 1633, 1633.1, 1633

. 7, subd. (a); Evid. Code, § 1401; Fabian v. Renovate America, Inc. (2019)

42 Cal.App.5th 1062, 1063 [affirming order denying motion to compel arbitration where the defendant failed to prove the plaintiff had electronically signed the agreement]; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 838

- 840 [ affi rming an order refusing to compel arbitration where purported agreement was electronically signed].)

Erewhon does not dispute Palacios’ inability to read or understand Engl ish , no r does it explain why the only document provided during discovery was in En glish. On these facts, it is6

clear the trial court did not err in finding Palacios’ testimony
credible.

DISPOSITION

The order denying the motion to compel arbitration is affirmed. Palacios is awarded her costs of appeal.

NOT TO BE PUBLISHED

VOGEL, J. *

We concur:

CHANEY, J.

BENDIX, Acting P. J.

* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.