FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARIO MARTINEZ-GONZALEZ, on 

behalf of himself and other 

aggrieved employees,

Plaintiff-Appellee,

v.

ELKHORN PACKING CO. LLC;

D'ARRIGO BROS. CO. OF 

CALIFORNIA,

Defendants-Appellants.

No. 19-17311

D.C. No.

3:18-cv-05226-

EMC

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted February 1, 2021

San Francisco, California

Filed November 3, 2021

Amended February 14, 2022

Before: Eugene E. Siler,* Johnnie B. Rawlinson, and 

Patrick J. Bumatay, Circuit Judges.

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 MARTINEZ-GONZALEZ V. ELKHORN PACKING

Order;

Opinion by Judge Bumatay;

Dissent by Judge Rawlinson

SUMMARY**

Arbitration / California Law

The panel reversed the district court’s order refusing to 

enforce arbitration agreements between Dario MartinezGonzalez and his former employers in an action alleging 

violations of federal and state labor and wage laws.

Elkhorn Packing Company is a farm labor contractor for 

D’Arrigo Brothers, a California-based grower of vegetables. 

As part of Elkhorn’s orientation for incoming employees, 

Martinez-Gonzalez signed employment paperwork that 

included arbitration agreements. The district court held that 

the arbitration agreements resulted from undue influence and 

economic duress, and therefore the agreements were invalid 

and unenforceable.

The panel held that under California law, the doctrine of 

economic duress did not render the arbitration agreements 

unenforceable because Elkhorn did not commit a wrongful 

act and reasonable alternatives were available to MartinezGonzalez. Martinez-Gonzalez asserted that Elkhorn 

committed a wrongful act by asking him to sign the 

arbitration agreement after he made the journey from 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 3

Mexico to California, where he was dependent on Elkhorn 

housing and had already started harvesting lettuce. The 

panel held that, while the circumstances surrounding the 

signing of the agreements were not ideal, they did not 

constitute a “wrongful act” under California law. The panel 

held further that Martinez-Gonzalez also failed to 

demonstrate a lack of reasonable alternatives where the 

agreements themselves did not say they were necessary for 

him to keep his job, no one at Elkhorn told MartinezGonzalez that refusing to sign the agreements was a cause 

for termination, and Martinez-Gonzalez admitted that no one 

at Elkhorn told him he would be terminated if he did not sign 

the agreements. With no threat of termination or express 

statement that the agreements were mandatory, it was clearly 

erroneous for the district court to conclude that MartinezGonzalez lacked a reasonable alternative – such as asking 

whether he could decline to sign the agreements. 

Furthermore, Martinez-Gonzalez had another reasonable 

alternative – to revoke the arbitration agreements.

The doctrine of “undue influence” can be used to rescind 

an agreement under California law. The panel held that the 

economic duress doctrine is employed only in limited 

circumstances, and here there was no reason to invoke this 

last resort given the lack of wrongful actions, the existence 

of reasonable alternatives, and Martinez-Gonzalez’s 

continued ability to vindicate his interests in arbitration. 

Martinez-Gonzalez did not show undue susceptibility where 

the facts did not support a finding that he was especially 

vulnerable to pressure. Given the lack of heightened 

susceptibility, Martinez-Gonzalez had to establish that 

“extraordinary force” was brought against him to prove 

undue influence. The panel held that the conditions here, 

while not ideal, were a far cry from actions considered 

“oppressive” under California law where: the timing and 
4 MARTINEZ-GONZALEZ V. ELKHORN PACKING

place of the orientation did not show that MartinezGonzalez’s will was overborne; the lack of time to consult 

with attorneys or read the agreements did not improperly 

induce Martinez-Gonzalez’s signatures since Elkhorn did 

not interfere with his ability to use either option; Elkhorn’s 

representatives’ instructions to sign the agreements quickly 

were not insistent demands; and Elkhorn representatives’ 

general statements to follow the company’s rules and 

directions had nothing to do with the arbitration agreements. 

Given the totality of the circumstances, the panel held that 

the district court clearly erred in finding undue influence 

here.

The panel remanded to the district court to determine 

whether Martinez-Gonzalez’s claims fell within the scope of 

the arbitration agreements.

Judge Rawlinson dissented because the majority 

completely disregarded the district court’s comprehensive 

factual findings following trial and the clear error standard 

of review. She agreed with the district court because the 

district court did not clearly err in concluding, after a bench 

trial, that the atmosphere surrounding the arbitration 

agreements rose to the level of a wrongful act. In addition, 

the district court’s finding of economic duress was amply 

supported by the evidence developed during trial, and the 

majority’s contrary finding was not.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 5

COUNSEL

Regina Silva (argued) and Dan J. Bulfer, Atkinson Andelson 

Loya Ruud Romo, La Jolla, California; Geoffrey F. Gega, 

Law Offices of Geoffrey Gega, Santa Ana, California; for 

Defendants-Appellants.

Karla Gilbride (argued) and Rodolfo Padilla, Public Justice 

P.C., Washington, D.C.; Ana Vicente de Castro and 

Josephine B. Weinberg, California Rural Legal Assistance 

Inc., Salinas, California; for Plaintiff-Appellee.

Bruce Goldstein, Iris Figueroa, and Gabriela Hybel,

Farmworker Justice, Washington, D.C., for Amicus Curiae 

Farmworker Justice.

ORDER

The opinion filed on November 3, 2021, and published 

at 17 F.4th 875, is amended by the opinion filed concurrently 

with this order.

With this amended opinion, Appellee’s petition for panel 

rehearing and rehearing en banc is DENIED. Judge 

Bumatay and Judge Siler have voted to deny the petition for 

panel rehearing. Judge Bumatay has voted to deny the 

petition for rehearing en banc and Judge Siler so 

recommends. Judge Rawlinson has voted to grant the 

petition for panel rehearing and rehearing en banc. The full 

court has been advised of the petition for rehearing en banc 

and no judge has requested a vote on whether to rehear the 

matter en banc. Fed. R. App. P. 35. No further petitions for 

panel rehearing or rehearing en banc may be filed.
6 MARTINEZ-GONZALEZ V. ELKHORN PACKING

OPINION

BUMATAY, Circuit Judge:

For three consecutive lettuce-harvesting seasons, Dario 

Martinez-Gonzalez worked as a farm laborer for Elkhorn 

Packing Company and D’Arrigo Brothers (collectively, 

“Elkhorn”). After quitting his job in the middle of the third 

season, Martinez-Gonzalez sued his former employers, 

alleging violations of federal and state labor and wage laws. 

Elkhorn later moved to compel arbitration under agreements 

signed by Martinez-Gonzalez after he traveled to the United 

States and started harvesting lettuce. The district court 

refused to enforce the arbitration agreements, holding that 

Martinez-Gonzalez signed them under economic duress and 

undue influence. We reverse and remand.

I.

Elkhorn Packing Company is a farm labor contractor for 

D’Arrigo Brothers, a California-based grower of vegetables. 

In 2015, Martinez-Gonzalez resided in Mexicali, Mexico, 

supporting his wife and their parents, when he learned about 

an opportunity to work for Elkhorn in the United States. A 

job at Elkhorn paid up to five times as much as MartinezGonzalez earned in Mexico. In 2016, Elkhorn accepted 

Martinez-Gonzalez’s application and helped him obtain an 

H-2A temporary agricultural worker visa. Elkhorn then 

transported Martinez-Gonzalez to Monterey County, 

California, to start the job.

Elkhorn held orientations for incoming employees. For 

Martinez-Gonzalez, the orientation did not occur until a few 

days after he began harvesting lettuce in the fields. The 

orientation took place at the end of the workday, at around 

4 p.m., in a hotel parking lot. At the orientation, some 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 7

150 workers were asked to sign employment paperwork. To 

facilitate the signing of the paperwork, Elkhorn 

representatives directed employees to form lines, where they 

stood—in at least one case for 40 minutes—and waited to 

sign the packages. Once at the front of the line, an Elkhorn 

representative told each employee where to sign while 

flipping through the pages. Representatives urged 

employees to hurry so that others could have a chance to 

sign.

The employment package included an arbitration 

agreement. The agreement required employees to resolve all 

disputes with Elkhorn by arbitration. The agreement was 

written in Spanish, Martinez-Gonzalez’s native language. 

Martinez-Gonzalez signed the arbitration agreement without 

reading it. Elkhorn representatives didn’t explain the 

contents of the arbitration agreement to Martinez-Gonzalez,1

didn’t give him a copy of the agreement, and didn’t tell him 

he could consult an attorney before signing it. On the other 

hand, Martinez-Gonzalez didn’t ask for a copy of the 

agreement, attorney consultation, or time to read the 

agreement. All sides agree that Elkhorn never expressly told 

Martinez-Gonzalez that he had to sign the agreement to keep 

working for the company.

Martinez-Gonzalez completed the 2016 season and 

traveled back to Mexico on Elkhorn-funded transportation. 

For the 2017 season, Martinez-Gonzalez again harvested 

lettuce for Elkhorn in Monterey County, California.2 He 

1 The district court credited Martinez-Gonzalez’s testimony that he 

received no explanation of the agreement, although Elkhorn disputes 

this.

2 In between the two seasons, Martinez-Gonzalez worked another 

season for Elkhorn in Yuma, Arizona.
8 MARTINEZ-GONZALEZ V. ELKHORN PACKING

also signed an arbitration agreement for the 2017 season. 

But Martinez-Gonzalez didn’t finish the 2017 season. He 

quit Elkhorn mid-season and returned to Mexico on his own.

In 2018, Martinez-Gonzalez sued Elkhorn in California 

state court on behalf of himself and other similarly situated 

workers, alleging a failure to pay federal minimum wages 

under the Fair Labor Standards Act, and state-law claims 

related to meals, wages, rest periods, and privacy. Elkhorn 

removed the case to federal district court and moved to 

compel arbitration under the two arbitration agreements. 

The district court held a two-day bench trial to determine the 

enforceability of the agreements and concluded that they 

resulted from undue influence and economic duress. The 

district court accordingly held the agreements invalid and 

unenforceable and denied the employers’ motion to compel. 

Elkhorn appeals to this court.

II.

The Federal Arbitration Act provides that arbitration 

agreements “shall be valid, irrevocable, and enforceable, 

save upon such grounds as exist at law or in equity for the 

revocation of any contract.” 9 U.S.C. § 2. In determining 

the enforceability of an arbitration agreement, “generally 

applicable contract defenses, such as fraud, duress, or 

unconscionability, may be applied to invalidate arbitration 

agreements without contravening § 2.” Nagrampa v. 

MailCoups, Inc., 469 F.3d 1257, 1268 (9th Cir. 2006) 

(simplified). State contract law governs this inquiry. 

Revitch v. DIRECTV, LLC, 977 F.3d 713, 716 (9th Cir. 

2020). We review the enforceability of an arbitration 

agreement de novo, but the factual findings underlying the 

district court’s decision for clear error. Nagrampa, 469 F.3d 

at 1267–68.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 9

A.

In California, a contract signed under economic duress 

may be rescinded. See Cal. Civ. Code § 1689(b)(1). 

Economic duress occurs when one party commits a 

(1) “wrongful act” and (2) that act “is sufficiently coercive 

to cause a reasonably prudent person faced with no 

reasonable alternative” to agree to an unfavorable contract. 

Perez v. Uline, Inc., 157 Cal. App. 4th 953, 959 (2007) 

(simplified). Economic duress also requires (3) causation: 

“[a] contract cannot be rescinded when it appears that 

consent would have been given . . . notwithstanding the 

duress[.]” In re Cheryl E., 161 Cal. App. 3d 587, 600 (1984); 

see also Judicial Council of California Civil Jury 

Instructions § 333, Affirmative Defense—Economic Duress 

(2020) (establishing three elements for economic duress).

The doctrine of economic duress does not prohibit 

“[s]imple hard bargaining.” Sheehan v. Atlanta Int’l Ins. 

Co., 812 F.2d 465, 469 (9th Cir. 1987). Instead, it is 

“designed to preclude the wrongful exploitation of business 

exigencies to obtain disproportionate exchanges of value.” 

Id. (simplified). While the doctrine guards against 

“economic exploitation,” it doesn’t interfere with the “notion 

of freedom of contract” or “the desirability of finality of 

private dispute resolution.” Id. The doctrine is one of “last 

resort,” to be used only absent “conventional alternatives 

and remedies.” Rich & Whillock, Inc. v. Ashton Dev., Inc., 

157 Cal. App. 3d 1154, 1159 (1984); see Grace M. Giesel, A 

Realistic Proposal for the Contract Duress Doctrine, 107 W. 

Va. L. Rev. 443, 463–64 (2005) (noting that, in the 

88 published cases nationwide on economic duress between 

1996 and 2003, only nine were decided in favor of the 

claim). The party seeking rescission bears the burden of 
10 MARTINEZ-GONZALEZ V. ELKHORN PACKING

proving economic duress. See Saheli v. White Mem. Med. 

Ctr., 21 Cal. App. 5th 308, 324 (2018).

Because Elkhorn did not commit a wrongful act and 

reasonable alternatives were available to MartinezGonzalez, we hold that the doctrine of economic duress does 

not render the arbitration agreements unenforceable.

1.

Martinez-Gonzalez has not established that Elkhorn 

engaged in any “wrongful act” under California law. While 

“wrongful acts” for economic duress need not be unlawful 

or tortious, Chan v. Lund, 188 Cal. App. 4th 1159, 1173

(2010), they are limited to actions that “make a mockery of 

freedom of contract and undermine the proper functioning of 

our economic system,” Rich & Whillock, 157 Cal. App. 3d 

at 1159. Examples of such wrongful acts include the 

assertion of a false claim, a bad faith threat to breach a 

contract, and a threat to withhold payment of an 

acknowledged debt. CrossTalk Prods. Inc. v. Jacobson, 

65 Cal. App. 4th 631, 645 (1998). California courts have 

also adopted the Restatement of Contracts’ definition of 

wrongful acts:

Impermissible threats include bad faith 

threatened use of civil process; threats which 

are a breach of the duty of good faith and fair 

dealing under a contract with the recipient; 

threats which would harm the recipient 

without significantly benefitting the party 

making the threat; or threats where “what is 

threatened is otherwise a use of power for 

illegitimate ends.”
MARTINEZ-GONZALEZ V. ELKHORN PACKING 11

Philippine Exp. & Foreign Loan Guarantee Corp. v. 

Chuidian, 218 Cal. App. 3d 1058, 1077 (1990) (citing 

Restatement (Second) of Contracts, § 176 (Am. L. Inst. 

1981)). Thus, wrongful acts require more than hard 

bargaining or tough business tactics. Rich & Whillock, 

157 Cal. App. 3d at 1159. They must involve actions taken 

for a “coercive purpose” or “in bad faith.” Hester v. Pub. 

Storage, 49 Cal. App. 5th 668, 679 (2020). Wrongful acts 

do not include arrangements that “serve a practical business 

function.” Id.

Martinez-Gonzalez asserts that Elkhorn committed a 

wrongful act by asking him to sign the arbitration agreement 

after he made the journey from Mexico to California, where 

he was dependent on Elkhorn housing and already started 

harvesting lettuce. This conduct doesn’t constitute a 

“wrongful act” under California law. First, MartinezGonzalez doesn’t allege that Elkhorn’s actions were 

unlawful or tortious. See Chan, 188 Cal. App. 4th at 1173. 

Second, the district court did not find that Elkhorn made any 

false claim, bad-faith threat, or refusal to repay its debt. See

CrossTalk, 65 Cal. App. 4th at 645. Third, Elkhorn’s actions 

do not fit the description of “[i]mpermissible threats” 

identified by the Restatement. See Chuidian, 218 Cal. App. 

3d at 1077. Finally, while the district court found that the 

timing of the orientation program disadvantaged MartinezGonzalez, it didn’t conclude that Elkhorn had a “coercive 

purpose” or acted “in bad faith” in asking him to sign the 

arbitration agreements after his arrival in the United States. 

See Hester, 49 Cal. App. 5th at 679.

3

3 Contrary to the dissent’s assertion, the district court never found 

that Elkhorn acted with a “coercive purpose” in arranging the orientation. 

Dissent at 36. While the district court observed that the circumstances 
12 MARTINEZ-GONZALEZ V. ELKHORN PACKING

In sum, while the circumstances surrounding the signing 

of the agreements were not ideal, they didn’t make “a 

mockery of [the] freedom of contract [or] undermine the 

proper functioning of our economic system.” See Rich & 

Whillock, 157 Cal. App. 3d at 1159. In fact, the district court 

acknowledged that the orientation’s location served a 

“practical business function,” Hester, 49 Cal. App. 5th at 

679, as a “convenient place” to gather hundreds of farm 

workers in a “single, unified orientation.” MartinezGonzalez v. Elkhorn Packing Co., LLC, No. 18-cv-05226-

EMC, 2019 WL 5556593, at *3, *10 (N.D. Cal. Oct. 29, 

2019). Construing the signing of the arbitration agreements 

here as a wrongful act would place courts in charge of 

determining business necessities and would encumber, 

rather than promote, the “freedom of contract.” Rich & 

Whillock, 157 Cal. App. 3d at 1159.

And contrary to Martinez-Gonzalez’s assertions, Rich & 

Whillock doesn’t help his case. There, the contractor forced 

a subcontractor to accept a fraction of the full amount of a 

debt owed, knowing that the subcontractor needed the 

money or would be forced into “imminent bankruptcy.” Id.

at 1160. This was a classic case of economic duress because

the contractor intentionally threatened the subcontractor 

with “economic disaster” by withholding the total 

undisputed debt. Id. at 1161; see also id. at 1157 (noting that 

subcontractor believed the threat was “blackmail” and 

“sign[ed] it only because [it] had to in order to survive”). 

Here, even though Martinez-Gonzalez signed the arbitration 

of the orientation made for a “coercive environment,” MartinezGonzalez v. Elkhorn Packing Co., LLC, No. 18-cv-05226-EMC, 2019 

WL 5556593, at *11 (N.D. Cal. Oct. 29, 2019), it did not contend that 

Elkhorn created this environment for a “coercive purpose” or in “bad 

faith,” as California law requires. Hester, 49 Cal. App. 5th at 679.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 13

agreement a few days after starting work, Elkhorn never 

threatened to withhold his wages.

Finally, we question whether extracting an arbitration

agreement could constitute a “wrongful act” under 

California law. A wrongful act involves “the wrongful 

exploitation of business exigencies to obtain 

disproportionate exchanges of value.” Id. Here, Elkhorn 

didn’t ask Martinez-Gonzalez to work for disproportionately 

low wages, to forgo earned wages, or to disclaim any claims 

against it. Instead, it asked him to sign a commonplace 

agreement to bring disputes to an arbitrator—a lawful 

agreement encouraged by California law. See Desert 

Outdoor Advert. v. Sup. Ct., 196 Cal. App. 4th 866, 872 

(2011) (providing that California “courts will indulge every 

intendment to give effect to arbitration clauses”). MartinezGonzalez doesn’t allege, and it’s difficult to surmise, what 

“value” he lost from entering such an agreement. In the few 

California cases finding a “wrongful act,” the exploitation 

involved the disproportionate loss of economic value, such 

as the loss of over $20,000 on a $72,000 debt, Rich & 

Whillock, 157 Cal. App. 3d at 1156–57, 1161; the extraction 

of an easement and fees totaling over $339,000, Uniwill v. 

City of Los Angeles, 124 Cal. App. 4th 537, 539–40, 545 

(2004); or an attempt to foreclose on a person’s home, 

Leeper v. Beltrami, 53 Cal. 2d 195, 203–05 (1959). On the 

other hand, a California court found no “wrongful act” when 

a company invoked a “null and void” clause to rescind a sale 

when the clause served a “practical business function”—

even if it caused significant economic harm to the buyer. 

Hester, 49 Cal. App. 5th at 679. We are aware of no case 

under California law in which the signing of an arbitration 

agreement was considered so “disproportionate” as to 

require the last resort of economic duress.
14 MARTINEZ-GONZALEZ V. ELKHORN PACKING

So, even without disturbing any of the district court’s 

findings of fact, Martinez-Gonzalez has not shown a 

“wrongful act” under California law. The dissent disagrees 

largely based on Martinez-Gonzalez’s socioeconomic 

background. See Dissent at 33–35. Like the dissent, we are 

sympathetic to Martinez-Gonzalez’s economic situation and 

in no way diminish his circumstances. But we must be 

guided by the law, not our sympathies. Our review of 

California law shows that the above facts do not amount to 

“wrongful conduct.” Neither the district court nor the 

dissent cite a single California authority showing that similar 

facts constitute wrongful conduct. And our role is to follow 

California law, not make up our own. Sonner v. Premier 

Nutrition Corp., 971 F.3d 834, 839 (9th Cir. 2020) 

(“[F]ederal courts exercising diversity jurisdiction must 

follow state substantive law[.]”).

2.

Martinez-Gonzalez also failed to demonstrate a lack of 

reasonable alternatives, and it was clearly erroneous for the 

district court to find otherwise. A reasonable alternative is 

one that “a reasonably prudent person would follow” to 

avoid a coerced agreement. CrossTalk Prods., 65 Cal. App. 

4th at 644. When such alternatives are available, a party 

cannot establish economic duress because there is “no 

compelling necessity” to submit to the inappropriate 

pressure. Id. “Merely being put to a voluntary choice of 

perfectly legitimate alternatives is the antithesis of duress.” 

In re Exec. Life Ins. Co., 32 Cal. App. 4th 344, 391 (1995).

It is not a reasonable alternative to be forced into

bankruptcy, financial ruin, or selling one’s home. Rich & 

Whillock, 157 Cal. App. 3d at 1159; Leeper, 53 Cal. 2d 

at 205. But the need for “a job and . . . the money offered 

under the agreement . . . does not equate to economic 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 15

duress.” Uline, 157 Cal. App. 4th at 960. Otherwise, 

economic duress would apply to “almost any case.” Id. 

Even if rejecting an agreement leads to the loss of some 

income, that is not enough to establish the lack of reasonable 

alternatives since a party “could presumably make up for 

the[] lost . . . opportunities elsewhere.” Hester, 49 Cal. App. 

5th at 680. And speculation about unfavorable outcomes 

cannot show economic duress—nor can the failure to revoke 

an agreement when doing so is permitted. Lanigan v. City 

of Los Angeles, 199 Cal. App. 4th 1020, 1034 (2011). 

Whether a party “acted as a reasonably prudent person is a 

question of fact.” Leeper, 53 Cal. 2d at 205.

The district court found that Martinez-Gonzalez lacked 

reasonable alternatives to signing the arbitration agreements 

because his challenging financial situation required him to 

keep his job with Elkhorn. In the district court’s view, 

Martinez-Gonzalez’s options were limited because he 

(mistakenly) believed his work visa only allowed him to 

work for Elkhorn and he was dependent on Elkhorn for 

housing and transportation back to Mexico. Elkhorn’s 

repeated admonishments to follow its rules, the district court 

said, also demonstrated the lack of reasonable alternatives.

But these circumstances do not show a lack of reasonable

alternatives since Martinez-Gonzalez could have simply 

asked whether signing the arbitration agreements was 

necessary for him to keep his job. First, the agreements 

themselves did not say that they were mandatory. Second, 

no one at Elkhorn told Martinez-Gonzalez that refusing to 

sign the agreements was a cause for termination. In fact, the 

district court found otherwise—while the district court said 

that some of the trial testimony “suggest[ed] that it was 

implied to workers that signing the Arbitration Agreement 

was mandatory,” Martinez-Gonzalez, 2019 WL 5556593, 
16 MARTINEZ-GONZALEZ V. ELKHORN PACKING

at *6, it found that Elkhorn never expressly told MartinezGonzalez that he had to sign the agreement to keep his job. 

Id. at *33. Third, Martinez-Gonzalez himself admitted that 

no Elkhorn representative ever told him he would be 

terminated if he did not sign the agreements. Instead, he 

testified that he signed the agreements, not out of fear of 

losing his job, but because he was tired and hungry and told 

to hurry. But “[e]ncouragement is a far cry from coercion or 

denial of choice.” In re Exec. Life Ins. Co., 32 Cal. App. 4th 

at 391. At his deposition, Martinez-Gonzalez conceded it 

was his “assumption” that the agreements were mandatory. 

We do not think a “reasonably prudent person” would just 

assume an agreement is mandatory—at least not without 

someone saying so or even asking.4

With no threat of termination or express statement that 

the agreements were mandatory, it was clearly erroneous to 

conclude that Martinez-Gonzalez lacked a reasonable 

alternative—such as asking whether he could decline to sign 

the agreements. The district court and dissent contend that 

these facts don’t matter because Martinez-Gonzalez 

subjectively believed the arbitration agreements were 

mandatory. Dissent at 38–39. But, under California law, a 

party’s speculation about his termination, even if justified or 

“highly likely,” cannot be used to prove the lack of 

reasonable alternatives. See Lanigan, 199 Cal. App. 4th at 

1034 (economic duress cannot be established when an 

officer signed a settlement agreement because of fear of 

4 The dissent concludes that Martinez-Gonzalez “had no meaningful 

opportunity to ask questions” about the arbitration agreements. Dissent 

at 42. But this factual finding is nowhere in the district court’s order. To 

the contrary, the district court acknowledged that “Elkhorn supervisors 

stated that . . . employees were invited to ask questions about the 

documents.” Martinez-Gonzalez, 2019 WL 5556593, at *6.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 17

losing his job and livelihood, when his termination was “not 

a certainty”). After all, California law applies a “reasonably 

prudent person” standard—an objective standard. See

14 Cal. Jur. 3d Contracts § 131 (“[U]nder California law, 

courts employ an objective test to determine whether a 

reasonable alternative was available.”).5

Furthermore, Martinez-Gonzalez had another reasonable 

alternative—to revoke the arbitration agreement. As the 

district court found, the arbitration agreements expressly 

allowed Martinez-Gonzalez to revoke the contract within ten 

days. Nothing shows that Elkhorn interfered with MartinezGonzalez’s right to revoke the agreements if he felt that the 

orientation’s setting was too coercive. Under California law, 

economic duress cannot be met when a party had the option 

to—but failed to—revoke an agreement within the 

revocation period. See Lanigan, 199 Cal. App. 4th at 1034. 

Martinez-Gonzalez claims he didn’t know he could revoke 

the agreements because he never read them, but a “cardinal 

rule of contract law” in California is that “a party’s failure to 

read a contract . . . before signing it is no defense to the 

contract’s enforcement.” Desert Outdoor Advertising, 

196 Cal. App. 4th at 872; see also Brown v. Wells Fargo 

5 It is unfortunate that the dissent misconstrues this analysis as our 

suggesting that “‘facts don’t matter’ to [her].” Dissent at 39. We would 

never criticize our dissenting colleague in such a manner. We respect 

her too much. Our point was merely to highlight our disagreement in 

analyzing the facts. Here, the dissent and district court think MartinezGonzalez’s subjective beliefs are more important than the objective lack 

of threats of termination. As stated above, this contradicts California 

law.
18 MARTINEZ-GONZALEZ V. ELKHORN PACKING

Bank, N.A., 168 Cal. App. 4th 938, 959 (2008) (“[I]t is not 

reasonable to fail to read a contract[.]” (emphasis omitted)).6

As an appellate court, we hesitate to overturn a district 

court’s factual findings. But where, as here, we are firmly 

convinced the district court overlooked key facts, it is our 

duty to reverse. See Myers v. United States, 652 F.3d 1021, 

1036 (9th Cir. 2011) (holding that findings of fact were 

clearly erroneous where the district court “simply ignored” 

contrary evidence in the record).

7

* * *

The economic duress doctrine is employed 

“reluctant[ly]” and “only in limited circumstances.” Uline, 

157 Cal. App. 4th at 959. Here, there is no reason to invoke 

this “last resort” given the lack of wrongful actions, the 

existence of reasonable alternatives, and MartinezGonzalez’s continued ability to vindicate his interests in 

arbitration. See Rich & Whillock, 157 Cal. App. 3d at 1159 

(holding that economic duress does not apply when 

“conventional alternatives and remedies” are still available). 

6 The dissent asserts that Elkhorn did not allow Martinez-Gonzalez 

to read the arbitration agreements. Dissent at 34. This is simply not 

accurate. The district court never made such a finding, and for good 

reason: Martinez-Gonzalez testified that no one from Elkhorn ever told 

him he could not read the agreements. In fact, he even said he had no 

intent to read the agreement at the time.

7 Because Martinez-Gonzalez’s economic duress argument fails 

under the wrongful act and reasonable alternative elements, we do not 

reach the doctrine’s causation requirement. See In re Marriage of 

Baltins, 212 Cal. App. 3d 66, 84 (1989) (“The coercion must induce the 

assent of the coerced party, who has no reasonable alternative to 

succumbing.”).
MARTINEZ-GONZALEZ V. ELKHORN PACKING 19

As a result, we disagree with the district court that MartinezGonzalez established economic duress.

B.

Like economic duress, the doctrine of “undue influence” 

can be used to rescind an agreement under California law. 

See Cal. Civ. Code § 1689(b)(1). By statute, undue 

influence results from three scenarios:

(1) In the use, by one in whom a confidence 

is reposed by another, or who holds a real or 

apparent authority over him, of such 

confidence or authority for the purpose of 

obtaining an unfair advantage over him;

(2) In taking an unfair advantage of another’s 

weakness of mind; or

(3) In taking a grossly oppressive and unfair 

advantage of another’s necessities or distress.

Cal. Civ. Code § 1575. Undue influence, however, “cannot

be used as a pretext to avoid bad bargains or escape from

bargains which refuse to come up to expectations.” Odorizzi

v. Bloomfield Sch. Dist., 246 Cal. App. 2d 123, 132 (1966). 

Courts must instead undertake the “difficult[]” task of

“determining when the forces of persuasion have overflowed

their normal banks and become oppressive flood waters.” 

Id.

Essentially, undue influence involves “the use of 

excessive pressure to persuade one vulnerable to such 

pressure.” Id. at 131. The doctrine consists of two elements: 

(1) “undue susceptibility in the servient person” and 

(2) “excessive pressure by the dominating person.” Id.; see 
20 MARTINEZ-GONZALEZ V. ELKHORN PACKING

also Das v. Bank of Am., 186 Cal. App. 4th 727, 743 (2010) 

(undue influence requires one party to “t[ake] some 

advantage of the mental weakness or incapacity of the other 

party”). The two elements act in balance. If either exists to 

a large degree, the second need not be so great. See Odorizzi, 

246 Cal. App. 2d at 132 (“Whether a person of subnormal 

capacities has been subjected to ordinary force or a person 

of normal capacities subjected to extraordinary force, the 

match is equally out of balance.”). The result, however, 

must be that the “will of the servient person being in fact the 

will of the dominant person.” Id. at 131.

Once again, the party seeking rescission bears the burden 

of proving undue influence. Saheli, 21 Cal. App. 5th at 324. 

Undue influence is a question of fact. See Keithley v. Civ. 

Serv. Bd., 11 Cal. App. 3d 443, 451–52 (1970).

1.

We first turn to the “undue susceptibility” element. 

Susceptibility means “a lessened capacity” of a party “to 

make a free contract.” Odorizzi, 246 Cal. App. 2d at 131. It 

may consist of wholesale mental incapacitation, but also 

extends to “a lack of full vigor due to age, physical condition, 

emotional anguish, or a combination of such factors.” Id.

(simplified). These situations “usually involve[] elderly, 

sick, [or] senile persons.” Id. The result is the “inability to 

act with unencumbered volition.” Keithley, 11 Cal. App. 3d 

at 451. Martinez-Gonzalez cannot show such undue 

susceptibility.

The district court made no explicit finding that MartinezGonzalez was especially vulnerable to pressure. And the 

facts don’t support such a finding. As the district court 

found, Martinez-Gonzalez had a secondary-school 

education and could read and write in Spanish. Martinez-
MARTINEZ-GONZALEZ V. ELKHORN PACKING 21

Gonzalez had been an agricultural worker since he was sixyears old and was the bread winner for his family. MartinezGonzalez provided housing and medical care for his wife, 

his mother, his now-deceased stepfather, and his diabetic 

mother-in-law.

So, Martinez-Gonzalez’s financial situation didn’t show 

that he was unable “to act with unencumbered volition.” Id. 

While Martinez-Gonzalez may come from a modest 

socioeconomic background, he was able to support himself 

and his family prior to working for Elkhorn. And the record 

doesn’t reflect that he couldn’t continue to do so after 

working for Elkhorn. Indeed, the fact that MartinezGonzalez voluntarily quit his Elkhorn job in 2017 confirms

that he had no undue susceptibility. So, without more, his 

economic situation doesn’t establish a “weakness of mind,” 

significant “necessities or distress,” or the placement of such 

“confidence” in Elkhorn to establish a claim for undue

influence. See Cal. Civ. Code § 1575.

2.

Next is the “excessive pressure” element. Given the lack 

of any heightened susceptibility, Martinez-Gonzalez had to

establish that “extraordinary force” was brought to bear 

against him to prove undue influence. See Odorizzi, 246 Cal.

App. 2d at 132. Factors that may show the presence of 

excessive pressure include:

(1) discussion of the transaction at an unusual 

or inappropriate time, (2) consummation of 

the transaction in an unusual place, 

(3) insistent demand that the business be 

finished at once, (4) extreme emphasis on 

untoward consequences of delay, (5) the use 

of multiple persuaders by the dominant side 
22 MARTINEZ-GONZALEZ V. ELKHORN PACKING

against a single servient party, (6) absence of 

third-party advisers to the servient party, 

(7) statements that there is no time to consult 

financial advisers or attorneys.

Id. at 133. Although excessive pressure “usually involves 

several” of these factors, id., “there are no fixed definitions 

or inflexible formulas.” Keithley, 11 Cal. App. 3d at 451. 

Instead, courts analyze “the entire context” to determine 

whether “one’s will was overborne.” Id.

On this element, the district court found excessive 

pressure. In making this finding, the district court relied on 

(1) the unusual time and place of the orientation—both 

because it was held after Martinez-Gonzalez traveled to the 

United States and because it occurred in a hotel parking lot 

with no chairs; (2) the lack of time to read the agreement in 

advance or consult an attorney; (3) the pressure to sign the 

agreements quickly after a long day’s work; and 

(4) statements from Elkhorn supervisors exhorting workers 

to follow the company’s rules.8

We find it implausible that these facts amount to 

“excessive pressure.” The conditions here, while not ideal, 

8 We disagree with the dissent that this inquiry can be reduced to a 

simple box-checking exercise of Odorizzi factors. See Dissent at 45. 

Even if the district court made findings on five of the seven Odorizzi

factors, we still must determine whether the facts can support a finding 

of undue influence under California law.

On appeal, Martinez-Gonzalez also claims that Elkhorn falsely 

represented that the agreements related to “Social Security.” This is a 

contested factual dispute, and the district court made no finding that 

Elkhorn made any fraudulent or false statements. We therefore do not 

consider this argument.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 23

are a far cry from actions considered “oppressive” under 

California law. Compare Odorizzi’s three examples of

oppressive actions:

• Approaching a pregnant woman about her 

late husband’s estate four days after he was 

shot to death, while she was still in shock;

• Seeking the release of claims from a patient 

who was confined to a cast in a hospital, 

hysterical, and in significant pain; and

• Arriving at a person’s home at 1 a.m. 

unannounced and insisting on the signing of 

a document immediately or letting a real 

estate transaction fall apart.

Odorizzi, 246 Cal. App. 2d at 133–34. When viewing the 

entire context, the conditions in this case don’t come close 

to those examples.9

First, the timing and place of the orientation do not show 

that Martinez-Gonzalez’s will was overborne. While it may 

be atypical for workers to sign employment documents in a 

hotel parking lot, Elkhorn runs an agricultural business, 

growing vegetables in remote farmlands, and the parking lot 

was conveniently located at the workers’ hotel. And as 

discussed above, the business practicalities of employing 

9 Despite the dissent’s assertion to the contrary, we do not suggest 

that these examples represent “the universe of circumstances” 

constituting undue influence. Dissent at 45–46. Rather, they illustrate 

the sort of extreme pressure that California courts consider as 

“extraordinary force.” Odorizzi, 246 Cal. App. 2d at 132. Once again,

we must follow California law, not our own view of what the law should

be.
24 MARTINEZ-GONZALEZ V. ELKHORN PACKING

over a hundred foreign workers easily explain why Elkhorn 

waited for the workers to arrive in the United States before 

asking them to sign the employment packets. Nothing 

indicates that the orientation was a “high pressure” tactic—

“a pressure which works on mental, moral, or emotional 

weakness”—aimed at extracting arbitration agreements. 

Keithley, 11 Cal. App. 3d at 451. Indeed, although MartinezGonzalez said he was tired and hungry when he signed the 

agreements, we do not think this amounts to the “oppressive” 

conditions required for undue influence.

Second, the lack of time to consult with attorneys or read 

the agreements did not improperly induce MartinezGonzalez’s signature since Elkhorn didn’t interfere with his 

ability to use either option. While it would have been better 

to affirmatively offer each worker time to read the agreement 

or to consult an attorney, Elkhorn did not preclude MartinezGonzalez from asking for such time or consultation. See

Robison v. City of Manteca, 78 Cal. App. 4th 452, 458 

(2000) (holding that circumstances did not “approach[]

undue influence” when nothing prevented a party from 

taking the time to read the agreement or consult an attorney).

Third, Elkhorn representatives’ instructions to sign the 

agreements quickly were hardly “insistent demand[s] that 

the business be finished at once.” Odorizzi, 246 Cal. App. 

2d at 133. As the district court found, Elkhorn urged the 

workers to hurry in signing the paperwork, not out of some 

bad-faith pressure tactic, but to accommodate other 

employees also waiting to complete the forms. See

Martinez-Gonzalez, 2019 WL 5556593, at *6 (“The 

supervisors who were present and assisting in the collection 

of signatures in both 2016 and 2017 urged employees to 

hurry so that the people behind them in line could also sign 

the documents.”). Elkhorn’s action, then, is nothing like the 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 25

excessive pressure described in Odorizzi, when a party was 

told that an entire real estate transaction “would fall through 

if she did not sign then and there.” 246 Cal. App. 2d at 134. 

It certainly doesn’t reach an “extreme emphasis on [the] 

untoward consequences of delay”—another Odorizzi factor 

that may signal undue influence. Id. at 133.

Fourth, Elkhorn representatives’ general statements to

follow the company’s rules and directions had nothing to do 

with the arbitration agreements. As the district court found, 

on Martinez-Gonzalez’s first day on the job, an Elkhorn 

representative told him and other employees that it was a 

privilege to work for the company, that they should work 

diligently, and that they were free to return to Mexico if they 

did not want to work hard. Other supervisors cautioned the 

employees to follow the company’s rules. We do not see 

how these standard first-day instructions could be construed 

as oppressive extortions to sign an arbitration agreement.

Given the totality of circumstances, we fail to see the 

extraordinary force needed to establish undue influence here. 

The district court clearly erred in finding otherwise.

* * *

At bottom, the undue influence question is whether 

Martinez-Gonzalez’s “will has been overcome against [his] 

judgment.” Odorizzi, 246 Cal. App. 2d at 132. Under

California law, parties “must abide [by] the consequences of

the risks inherent in managing [their] own affairs.” Id.

(noting that a real estate purchase may not be rescinded

simply because the seller “cultivated” the buyer’s

expectation—later shown to be mistaken—that the land

would “become another Palm Springs”). Because neither

undue susceptibility nor excessive pressure appears here to 
26 MARTINEZ-GONZALEZ V. ELKHORN PACKING

any significant degree, it is implausible and unsupported by 

the record to find undue influence here.

III.

Martinez-Gonzalez has not shown that he signed the 

arbitration agreements under economic duress or undue 

influence. We therefore reverse and remand to the district 

court to determine whether Martinez-Gonzalez’s claims fall 

within the scope of the arbitration agreement.

REVERSED AND REMANDED.

RAWLINSON, Circuit Judge, dissenting:

The majority reverses the district court’s finding, 

following a bench trial, that Dario Martinez-Gonzalez 

(Martinez-Gonzalez), a migrant worker, was subjected to 

economic duress and undue influence in the circumstances 

surrounding his signing of Arbitration Agreements with his 

employer, Elkhorn Packing Company (Elkhorn).

Because the majority opinion gives short shrift to the 

standard of review, I will begin with a discussion of the 

applicable standard of review and then proceed to apply it to 

the compelling facts of this case.

We have set forth clear error as the applicable standard 

of review when considering a factual determination that an 

arbitration agreement was obtained through the use of 

economic duress or undue influence. See Stover v. Experian 

Holdings, Inc., 978 F.3d 1082, 1085 (9th Cir. 2020). We 

also review findings of fact following a bench trial for clear 

error. Olson v. United States by & through Dep’t of Energy, 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 27

980 F.3d 1334, 1337 (9th Cir. 2020). Credibility 

determinations made by the judge presiding over the trial are 

afforded “special deference.” Allen v. Iranon, 283 F.3d 

1070, 1078 n.8 (9th Cir. 2002).

After hearing extensive testimony, the district court 

found that Martinez-Gonzalez and another Elkhorn migrant 

worker testified credibly regarding the circumstances 

surrounding their employment with Elkhorn and the signing 

of the Arbitration Agreements. See Martinez-Gonzalez v. 

Elkhorn Packing Co., LLC, No. 18-cv-05226-EMC, 2019 

WL 5556593, at *2 (N.D. Cal. Oct. 29, 2019). That 

testimony and other evidence established the following facts 

as found by the district court:

1. Martinez-Gonzalez signed Arbitration 

Agreements in 2016 and 2017.

2. Martinez-Gonzalez signed the 

Arbitration Agreements in the United 

States after he was transported from 

Mexico for a period of approximately 

twelve hours in a bus provided by 

Elkhorn.

3. Martinez-Gonzalez was not presented 

with the Arbitration Agreements while in 

Mexico, and was never provided an 

explanation of the import of the 

Arbitration Agreements.

4. During his employment with Elkhorn, the 

company provided Martinez-Gonzalez 

with housing at a hotel and transportation 

between the fields and the hotel.
28 MARTINEZ-GONZALEZ V. ELKHORN PACKING

5. In 2016 and 2017, Martinez-Gonzalez 

and the other migrant workers were 

directed to sign a stack of “new hire 

documents” that included the Arbitration 

Agreements.

6. No “real explanation” was provided of 

the documents the migrant workers were 

directed to sign.

7. The Arbitration Agreements were 

included within a stack of documents that 

also contained IRS forms, a food safety 

form, a workers compensation 

agreement, and other documents.

8. The stack of documents was signed in the 

parking lot of the hotel where the 

migrant workers resided.

9. The stack of documents was signed at the 

end of the day after the workers had 

worked a full day in the fields and when 

Martinez-Gonzalez was tired and hungry.

10. No seating was provided for the migrant 

workers, although the supervisors 

collecting the signatures were seated.

11. The migrant workers were directed to 

stand in a line and wait their turn to sign 

the documents.

12. Martinez-Gonzalez stood in line for 

approximately forty minutes before he 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 29

reached the table where the documents 

were located.

13. Elkhorn supervisors flipped through the 

pages of the documents and directed 

Martinez-Gonzalez where to sign.

14. Elkhorn supervisors urged the migrant 

workers to hurry so that those still waiting 

could also sign the documents.

15. Martinez-Gonzalez was not provided 

copies of the Arbitration Agreements to 

review in advance or given an 

opportunity to read the Arbitration 

Agreements before signing them. 

Neither was he provided with copies of 

the documents after signing them. 

Rather, the documents were collected 

after they were signed.

16. The Arbitration Agreements contained no 

language indicating that the agreements 

were optional, and none of the Elkhorn 

supervisors informed Martinez-Gonzalez 

that the Arbitration Agreements were 

optional.

17. Martinez-Gonzalez was never informed 

that he could consult with an attorney 

before signing the Arbitration 

Agreements.

18. Martinez-Gonzalez reasonably believed 

that he had no option but to sign the 

documents presented to him to continue 
30 MARTINEZ-GONZALEZ V. ELKHORN PACKING

working for Elkhorn. He also believed 

that the H-2A visa limited him to working 

at Elkhorn.1

19. The testimony from several Elkhorn 

supervisors that the migrant workers were 

not required to sign the Arbitration 

Agreements to remain employed was not 

credible.

20. In the United States, Martinez-Gonzalez 

was able to earn five times as much as he 

would earn in Mexico.

21. Martinez-Gonzalez supported his wife, 

his mother, his step-father, and his 

mother-in-law.

Id. at *2–*7.

Because these factual findings were made by the district 

court after observing and listening to the witnesses testify, 

they are entitled to “special deference.” Allen, 283 F.3d 

at 1078 n.8. And because the factual findings are rooted in 

the record developed during trial, they cannot be clearly 

erroneous. See United States v. Bontemps, 977 F.3d 909, 

917 (9th Cir. 2020) (explaining that factual findings by a 

district court are not clearly erroneous unless “illogical, 

implausible, or without support in the record”).

After setting forth its extensive and detailed factual 

findings, the district court reached the legal conclusion that 

1 Amicus Farmworker Justice described vividly and in detail the 

systematic exploitation of migrant workers for the H-2A visa program.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 31

the Arbitration Agreements were unenforceable because 

they were the product of economic duress and undue 

influence. See id. at *8–*11.

The crux of the district court’s determination was that 

Elkhorn’s conscious decision to direct the migrant workers 

to sign the Arbitration Agreements after transporting them 

twelve hours from home, staging the signings in a parking 

lot with no seating after a day in the fields, and providing no 

explanation or opportunity to review the documents 

constituted the wrongful act required to support a claim of 

economic duress. See id. at *8–*10. The majority disagrees, 

concluding that Elkhorn committed no wrongful act, and that 

“reasonable alternatives were available to MartinezGonzalez.” Majority Opinion, p. 10.

I disagree with the majority and agree with the district 

court, primarily because the district court did not clearly err 

in concluding, after a bench trial, that the atmosphere 

surrounding the signing of the Arbitration Agreements rose 

to the level of a wrongful act. Martinez-Gonzalez, 2019 WL 

5556593, at *8. It is important to keep in mind that under 

California law, the wrongful act required to establish 

economic coercion need not constitute a tort or a crime. Rich 

& Whillock, Inc. v. Ashton Dev., Inc., 157 Cal. App. 3d 1154, 

1158 (1984). Rather, all that is required is a “wrongful act 

which is sufficiently coercive to cause a reasonably prudent 

person faced with no reasonable alternative to succumb to 

the perpetrator’s pressure.” Id. (citations omitted).

California courts have described the economic duress 

doctrine as “equitably based.” Id. (citation omitted). As a 

matter of policy, “there is an increasing recognition of the 

law’s role in correcting inequitable or unequal exchanges 

between parties of disproportionate bargaining power and a 

greater willingness to not enforce agreements which were 
32 MARTINEZ-GONZALEZ V. ELKHORN PACKING

entered into under coercive circumstances.” Id. (citation 

omitted).

In determining whether the party asserting economic 

duress had a reasonable alternative available, courts examine 

“whether a reasonably prudent person would follow the 

alternative course, or whether a reasonably prudent person 

might submit.” CrossTalk Prods., Inc. v. Jacobson, 65 Cal. 

App. 4th 631, 644 (1998). “Clearly this inquiry is a factual 

one. . . .” Id. (emphasis added); see also Doe 1 v. Morrison 

& Foerster, LLP, No. 18-cv-02542-JSC, 2019 WL 

11806485, at *4 (N.D. Cal. May 1, 2019) (same). Indeed, 

“the existence of economic duress raises a number of factual 

inquiries,” Doe 1, 2019 WL 11806485, at *4, including 

whether the individual “faced no reasonable alternative [but] 

to succumb to the perpetrator’s pressure.” Hicks v. PGA 

Tour, Inc., 897 F.3d 1109, 1119 (9th Cir. 2018).

The district court determined that Martinez-Gonzalez 

had no reasonable alternative but to succumb to Elkhorn’s 

pressure to sign the Arbitration Agreements. MartinezGonzalez, 2019 WL 5556593, at *8. The court’s factual 

inquiry focused on the following facts established during the 

bench trial:

• The Arbitration Agreements were presented 

to Martinez-Gonzalez for signature after a 

twelve-hour bus ride from Mexico to the 

United States.

• Martinez-Gonzalez was living in housing 

controlled by Elkhorn.

• Martinez-Gonzalez was provided with no 

information about the Arbitration 

Agreements.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 33

• Martinez-Gonzalez was transported to the 

United States under the auspices of an H-2A 

visa obtained through Elkhorn and had 

already begun working for Elkhorn.

• Martinez-Gonzalez reasonably believed that 

he could not seek work with another 

employer.

• Martinez-Gonzalez had no other place to live.

• Martinez-Gonzalez had no means of 

transportation to return to Mexico.

• Martinez-Gonzalez was admonished by 

Elkhorn supervisors to follow Elkhorn’s rules 

and instructions or risk being sent back to 

Mexico.

• Elkhorn representatives were aware of and 

acknowledged “the economic vulnerabilities 

of their agricultural workers.”

See id. at *8–*9.

Based on the evidence presented during trial, the district

court concluded that no reasonable migrant worker with 

Martinez-Gonzalez’s “significant financial obligations,” and 

“without alternative employment prospects, an alternative 

place to live . . . and no practical way to return to Mexico,” 

would have refused to sign the Arbitration Agreements. Id.

at *9.

The majority opinion articulates no real issue with the 

findings of fact made by the district court but concludes, 

nevertheless, that Martinez-Gonzalez was not subjected to 
34 MARTINEZ-GONZALEZ V. ELKHORN PACKING

economic duress. In the majority’s view, this case boils 

down to whether Elkhorn “committed a wrongful act by 

asking [Martinez-Gonzalez] to sign the arbitration 

agreement after [Martinez-Gonzalez] made the journey from 

Mexico to California.” Majority Opinion, p. 11. However, 

that oversimplification of the district court’s ruling ignores 

the detailed factual findings upon which the district court 

predicated its ruling, including: 1) the fact that MartinezGonzalez faced challenging economic circumstances; 2) the 

fact that Martinez-Gonzalez was dependent on Elkhorn for 

housing and transportation; 3) the fact that MartinezGonzalez reasonably believed that he could only work for 

Elkhorn on the H-2A visa; 4) the fact that MartinezGonzalez was directed to sign the Arbitration Agreements 

without being allowed to read them and with “no 

explanation” of them; and 5) the fact that Martinez-Gonzalez 

was never provided with a copy of the Arbitration 

Agreements. Martinez-Gonzalez, 2019 WL 5556593, at *2–

*7.

The majority admits that “the circumstances of the 

signing of the arbitration agreements were not ideal,” but 

concludes that those circumstances “didn’t make a mockery 

of [the] freedom of contract [or] undermine the proper 

functioning of our economic system.” Majority Opinion, 

p. 12. However, this conclusion by the majority 

impermissibly conflicts with the detailed factual findings 

made by the district court. See Allen, 283 F.3d at 1078 n.8 

(directing “special deference” to factual findings made by 

the trial court) (quoting Rich & Whillock, 157 Cal. App. 3d 

at 1159). This is not a case of “simple hard bargaining.” 

Majority Opinion, p. 9 (quoting Sheehan v. Atlanta Int’l Ins. 

Co., 812 F.2d 465, 469 (9th Cir. 1987)) (alteration omitted). 

Rather, this case is a prime example of the “inequitable or 

unequal exchanges between parties of disproportionate 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 35

bargaining power” the economic duress doctrine aims to 

rectify. Rich & Whillock, 157 Cal. App. 3d at 1158. In 

Mexico, Martinez-Gonzalez earned the equivalent of $150 a 

week while financially supporting his wife, mother-in-law, 

mother, and stepfather. He could earn five times more in the 

United States. Elkhorn knew that “behind every employee, 

there are three, five, even up to eight people from their 

families who depend on that worker.” Martinez-Gonzalez, 

2019 WL 5556593, at *9. It is not difficult to contemplate 

the desperate circumstances that would compel MartinezGonzalez to leave his family, travel twelve hours by bus to 

another country, and work in a field six days a week for nineplus hours. What is difficult to understand is how the 

majority can consider Rich & Whillock, which involved a 

contractor “only” obtaining 70% of what was owed, a 

“classic case of economic duress” while reducing the 

compelling facts of this case to the signing “of a 

commonplace agreement.” Majority Opinion, pp. 12–13.

The majority accuses the dissent of making up California 

law regarding what constitutes wrongful conduct. See 

Majority Opinion, pp. 13. Not so. California law clearly 

establishes that “[e]conomic duress does not necessarily 

involve an unlawful act, but may arise from an act that is so 

coercive as to cause a reasonably prudent person, faced with 

no reasonable alternative, to agree to an unfavorable 

contract.” Tarpy v. Cnty. of San Diego, 110 Cal. App. 4th 

267, 277 (2003) (citations and internal quotation marks 

omitted). My colleagues in the majority cannot quarrel with 

that proposition, given their acknowledgment that lawful 

acts may constitute economic duress if done with “coercive 

purpose or in bad faith.” Majority Opinion, p. 11 (internal 

quotation marks omitted).
36 MARTINEZ-GONZALEZ V. ELKHORN PACKING

Where the majority takes a wrong turn is in proclaiming 

that the district court “never found that Elkhorn acted with a 

‘coercive purpose’” in directing Martinez-Gonzalez to sign 

the arbitration agreements during the mass orientation. Id.

at 11 n.3. Indeed, the entire thrust of the district court’s 

factual findings was that Elkhorn acted with a coercive 

purpose: that Elkhorn created a “coercive environment” 

aimed at robbing Martinez-Gonzalez of the ability to say no 

to arbitration. Martinez-Gonzalez, 2019 WL 5556593, 

at *11. The majority must ignore these factual findings to 

conclude otherwise.

The majority even “question[s] whether extracting an 

arbitration agreement could constitute a ‘wrongful act’ under 

California law.” Majority Opinion, p. 13. This is a 

strawman argument. Martinez-Gonzalez did not seek to 

invalidate his employment agreement on the basis that 

making him sign an arbitration agreement was improper. 

Rather, he sought to invalidate the arbitration agreement on 

the basis that he signed it under economic duress and as a 

result of undue influence. Neither the district court, 

Martinez-Gonzalez, nor I proposed that signing an 

arbitration agreement is wrongful in and of itself.

The majority also concludes that Martinez-Gonzalez 

“failed to demonstrate a lack of reasonable alternatives” to 

signing the arbitration agreements. Majority Opinion, p. 14. 

Again, the majority takes no real issue with the factual 

findings made by the district court. Instead, the majority 

concludes, contrary to those findings, that a reasonable 

migrant worker facing the circumstances confronted by 

Martinez-Gonzalez would have declined to sign the 

Arbitration Agreements. Id. at pp. 14–16. However, the 

majority’s conclusion is belied by the evidence presented 

during trial, including the testimony of another migrant 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 37

worker who corroborated Martinez-Gonzalez’s version of 

events. In addition, it was undisputed “that of the thousands 

of employees hired, no employee has ever refused to sign the 

Arbitration Agreement.” Martinez-Gonzalez, 2019 WL 

5556593, at *6. In the face of this considerable and 

persuasive evidence, I cannot fathom how one could 

logically conclude that Martinez-Gonzalez had reasonable 

alternatives to signing the Arbitration Agreements, 

especially given the deference we are required to give the 

trial court’s findings of fact.

The majority’s diminishing of Martinez-Gonzalez’s 

compelling situation as the need for “a job and . . . money,” 

Majority Opinion, p. 14–15, turns a blind eye to the factual 

findings regarding Martinez-Gonzalez’s dire circumstances, 

as well as the realities of migrant workers. Even Elkhorn, 

who recognized that “three, five, even up to eight people 

from their families . . . depend on [a] worker,” MartinezGonzalez, 2019 WL 5556593, at *9, was not so dismissive 

of the financial weight borne by migrant workers.

The majority maintains that my dissent is “largely based 

on Martinez-Gonzalez’s economic situation” and guided by 

“sympathies” and not the law. Majority Opinion, p. 14. The 

opposite is true: my paramount guides are the district court’s 

factual findings, to which we must defer, and California law, 

both of which I faithfully apply to the particular 

circumstances of this case, including Martinez-Gonzalez’s 

socioeconomic background. In contrast, as pointed out, the 

majority strays from both the district court’s detailed factual 

findings regarding Martinez-Gonzalez’s circumstances and 

California law.

The majority raises three points in support of its 

conclusion that Martinez-Gonzalez had reasonable 

alternatives. See Majority Opinion, pp. 15–16. But these 
38 MARTINEZ-GONZALEZ V. ELKHORN PACKING

three points cannot withstand the force of the district court’s 

factual findings.

Majority Point 1: “No one at Elkhorn told

Martinez-Gonzalez that refusing to sign the 

agreements was a cause for termination.”

The Rest of the Story: The district court 

expressly “[did] not credit” testimony from 

Elkhorn that the agreements were “not 

mandatory” or that failure to sign would not 

lead to termination. Martinez-Gonzalez

5556593, at *6. The district court found that 

despite the lack of an express threat of loss of 

employment, Martinez-Gonzalez credibly 

testified regarding his belief that if he refused 

to sign the Arbitration Agreements, “he 

would not be given work and would be sent 

back to Mexico.”2 Id. The district court gave 

the following examples of why MartinezGonzalez “had numerous reasons to believe 

that signing the [Arbitration Agreements] 

was mandatory”: 1) Martinez-Gonzalez was 

told to hurry through signing the Arbitration 

Agreements; 2) The migrant workers stood in 

lengthy lines to sign the Arbitration 

Agreements after working in the fields all 

day; 3) The migrant workers were tired and 

hungry; 4) Elkhorn supervisors repeatedly 

“emphasized the importance of following the 

2 This finding is consistent with the amicus’ explanation of the H2A visa program: “[a]n H-2A guestworker generally may only work for 

the individual employer that obtained the visa for him. When the job 

ends, or if a worker quits, he must return home or risk deportation.”
MARTINEZ-GONZALEZ V. ELKHORN PACKING 39

rules, while raising the specter of being sent 

back to Mexico if employees did not work 

hard”; and 5) The migrant workers “were in 

the United States on an H-2A visas procured 

through Elkhorn.” The district court 

specifically did not credit the testimony of 

Elkhorn supervisors that the Arbitration 

Agreements were not mandatory and that no 

employee would be terminated for refusing to 

sign them. See id.

Moreover, “no employee was told signing 

[the Agreements] was optional.” Id. To the 

contrary, an Elkhorn representative “testified 

that the Arbitration Agreements were NOT

voluntary,” that the “documents were 

REQUIRED for the employees to begin 

working,” and that “he would look for any 

worker [who] did not sign all the 

documents.” Another Elkhorn representative 

testified that the Arbitration Agreement was 

presented as a document “you ARE going to 

sign.” Id. (bolding added).

The majority’s suggestion that “facts don’t 

matter” to me or to the district court, Majority 

Opinion, p. 16, is nothing short of 

gaslighting.3

 The district court heard the 

3 The term “[g]aslighting is . . . used informally to describe someone 

who persistently puts forth [a] false narrative” in an effort to cause 

“another person to doubt [her] own perceptions. . . .” 

https:en.m.wikipedia.org. 9/19/2021. I do not question my colleagues 

respect for me and I respect them equally. But the words written by the 

majority say what they say.
40 MARTINEZ-GONZALEZ V. ELKHORN PACKING

testimony, weighed the conflicting evidence, 

and issued detailed factual findings, 

including credibility assessments. We may 

not disturb those detailed factual findings 

unless they are clearly erroneous. See 

Bontemps, 977 F.3d at 917. Because the 

district court’s factual findings are anchored 

in the record developed during trial, the 

majority is actually the side ignoring the 

facts.

Majority Point 2: Martinez-Gonzalez did not 

ask if the arbitration agreements were 

mandatory, and he could have asked to 

review the documents.

The Rest of the Story: The district court 

found, after hearing testimony, that MartinezGonzalez had “no real opportunity to review 

the new-hire documents” or “read the 

Arbitration Agreement[s].” MartinezGonzalez, 2019 WL 5556593, at *4, *7. 

Rather, Martinez-Gonzalez was rushed 

through the process and presented with a 

stack of documents to sign, none of which 

was even identified as an arbitration 

agreement. See id. at *6–*7. The supervisors 

flipped through the stack of documents and 

directed the migrant workers where to sign, 

with no opportunity to view the documents.4

 

4 Moreover, it strains credulity that the Arbitration Agreements were 

voluntary when, as amicus further noted, the lack of limits for H-2A visas 

create an “unlimited supply of guestworkers” and “[i]f one worker 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 41

See id. Martinez-Gonzalez and the other 

migrant workers were also tired and hungry 

from having worked a full day in the fields. 

See id.

The majority is correct that Elkhorn 

representatives testified that workers “were 

invited to ask questions about the 

documents.” Majority Opinion, p. 16 n.4. 

But the district court did not credit this 

testimony. Rather, the district court noted 

that one Elkhorn representative testified that 

no workers had ever asked him any 

questions. See Martinez-Gonzalez, 2019 WL 

5556593, at *6. Moreover, MartinezGonzalez’s co-worker testified that when he 

did ask questions about the documents he was 

signing, he was told that they concerned 

“insurance.” Id. The district court credited 

the testimony that Martinez-Gonzalez was 

not allowed to read the Arbitration 

Agreements, they were not explained to him, 

and he was never provided copies of the 

agreements. See id. at *5–*6. In fact, one 

Elkhorn representative testified that even if a 

worker inquired, “he would not have been 

able to explain the rights [migrant] workers 

were waiving by signing the Arbitration 

Agreement[s].” Id. at *6. Based on those 

facts and others, the district court concluded 

that Elkhorn’s position that it never told 

workers they could not review the documents 

decides conditions are too dangerous or pay is too low, another H-2A 

worker can quickly take his place.”
42 MARTINEZ-GONZALEZ V. ELKHORN PACKING

“did not negate the coercive environment 

created by the circumstances and the 

reasonably perceived risks facing [MartinezGonzalez] and his co-workers.” Id. at *11. 

In other words, Martinez-Gonzalez had no 

meaningful opportunity to ask questions 

about the Arbitration Agreements.

Majority Point 3: “[T]he arbitration 

agreements expressly allowed MartinezGonzalez to revoke the contract within ten 

days.”

The Rest of the Story: According to the 

district court’s factual findings, there was no 

way that Martinez-Gonzalez would have 

known about the revocation provision in the 

Arbitration Agreements. Martinez-Gonzalez 

was not allowed to read the Arbitration 

Agreements, they were not explained to him, 

and he was never provided copies of the 

agreements. See id. at *5–*6. Because the 

documents were gathered up by the 

supervisors immediately after signing, there 

was no opportunity to request a copy to 

review later, particularly as the testimony 

reflected that the supervisors rushed the 

workers through the process, with no 

opportunity for questions. See id.

California appellate courts and federal district courts 

applying California law uniformly agree, without 

controversy, that whether reasonable alternatives exist, and 

whether duress is present in general, are factual questions. 

See CrossTalk, 65 Cal. App. 4th at 644 (“Clearly, this 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 43

inquiry is a factual one.”); accord Est. Of Bennett, 163 Cal. 

App. 4th 1303, 1310 (2008); see also Doe, 2019 WL 

11806485, at *4; Synnex Corp. v. Wattles, No. 11-cv-01496-

YGR, 2012 WL 5524953, at *5 (N.D. Cal. Nov. 14, 2012) 

(“Whether a party acted under duress is normally a question 

of fact . . .”) (citation omitted); Porsandeh v. Prudential 

Prop. & Cas. Ins. Co., No. CV-02-5354-EFS(SHX), 2004 

WL 5642440, at *6 (C.D. Cal. Apr. 30, 2004) (“Economic 

duress is a question for the jury. . . .”) (citation omitted).

At bottom, the facts in this case were disputed. The 

district court conducted a trial and made factual findings, to 

which we must defer. See Allen, 283 F.3d at 1078 n.8. The 

district court’s finding of economic duress is amply 

supported by the evidence developed during trial. The 

majority’s contrary finding is not.

The district court’s conclusion that Martinez-Gonzalez 

was subjected to undue influence stands on even firmer 

footing. Under California law, “undue influence” is defined 

as “persuasion which tends to be coercive in nature, 

persuasion which overcomes the will without convincing the 

judgment.” Odorizzi v. Bloomfield Sch. Dist., 246 Cal. App. 

2d 123, 130 (1966) (citation omitted). “The hallmark of 

[coercive] persuasion is high pressure. . . . Id. (citation 

omitted). See also Cal. Civ. Code § 1575 (“Undue influence 

consists . . . [i]n taking a grossly oppressive and unfair 

advantage of another’s necessities or distress.”).

Undue influence exists when the “weakness on one side, 

or strength on the other, or a combination of the two” results 

in the overbearing of the will of the weaker side. Odorizzi, 

246 Cal. App. 2d at 132.
44 MARTINEZ-GONZALEZ V. ELKHORN PACKING

California courts examine the following factors to 

determine the existence of excessive pressure resulting in the 

overbearing of one’s will:

Factor 1 - discussion of the transaction at an 

unusual or inappropriate time

Factor 2 - consummation of the transaction in 

an unusual place

Factor 3 - insistent demand that the business 

be finished at once

Factor 4 - extreme emphasis on untoward 

consequences of delay

Factor 5 - the use of multiple persuaders by 

the dominant side against a single servient 

party

Factor 6 - absence of third-party advisers to 

the servient party

Factor 7 - statements that there is no time to 

consult financial advisers or attorneys.

Id. at 133. “If a number of these elements are simultaneously 

present; the persuasion may be characterized as excessive.” 

Id.

A comparison of the district court’s findings to the 

applicable factors is informative.
MARTINEZ-GONZALEZ V. ELKHORN PACKING 45

Factors District Court Findings

Unusual or inappropriate 

time

At the end of the workday 

after toiling in the fields

Unusual place Parking lot of the hotel

Insistence on speedy 

completion

Repeatedly admonished to 

hurry

Consequences of delay No specific factual finding

Multiple persuaders Multiple seated Elkhorn 

supervisors present while 

migrant workers stood in 

line and waited for 

directions

Absence of third-party 

advisers

No opportunity to consult 

an attorney

Statement of lack of time to 

consult adviser

No specific factual finding

The district court made specific factual findings directly 

corresponding to five of the seven Odorizzi factors. 

Therefore, the persuasive force applied by Elkhorn to obtain 

Martinez-Gonzalez’s signature on the Arbitration 

Agreements was properly characterized by the district court 

as “excessive.” Id.

The majority seeks to blunt the force of the district 

court’s factual findings that mirror five of the Odorizzi

factors by referencing the specific facts of cases discussed in 

Odorizzi. See Majority Opinion, p. 23. However, the court 

in Odorizzi foreclosed the majority’s argument by clarifying 

in advance that the cases discussed “are illustrative” and in 
46 MARTINEZ-GONZALEZ V. ELKHORN PACKING

no way reflect the universe of circumstances that constitute 

undue influence. Odorizzi, 246 Cal. App. 2d at 133. The 

majority attempts to dodge that clarification by hedging in a 

footnote that they “do not suggest that these examples 

represent ‘the universe of circumstances’ constituting undue 

influence.” Majority Opinion, p. 23 n.9. But the majority 

does indeed make such a suggestion by ignoring the district 

court’s factual findings on the Odorizzi factors.

Overall, my colleagues in the majority pay lip service to 

the deference we owe to the district court’s factual findings, 

while simultaneously making their own factual findings 

based on their own weighing of the evidence. See Majority 

Opinion, pp. 20–26. The majority admits that the Arbitration 

Agreements were signed in an “atypical” place, but attempt 

to normalize that practice because Elkhorn “grow[s] 

vegetables in remote farmlands.” Id. at 23. Any way you 

slice it, as the district court found, a hotel parking lot “is an 

unusual place to execute legally binding documents.” 

Martinez-Gonzalez, 2019 WL 5556593, at *10. Moreover, 

the fact that workers “had no place to sit down, no desks 

upon which they could review the documents prior to 

signing them, and no opportunity or privacy that would 

permit them to speak with an attorney or family member 

outside of the presence of their employer or co-workers,” 

added to the coercive effect of the unusual setting. Id. The 

majority also elides the fact that workers signed the 

Arbitration Agreements after having “worked a full day in 

the fields” and while “tired, hungry, [and] eager to get 

cleaned up before going to sleep.” Id.

The majority concedes that Elkhorn hurried workers to 

sign the new-hire documents, but mischaracterizes that fact 

as an accommodation to other workers waiting in line to sign 

rather than “some bad-faith pressure tactic.” Majority 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 47

Opinion, p. 24. In doing so, the majority blatantly ignores 

the district court’s finding that Elkhorn manufactured the 

coercive atmosphere by urging tired and hungry workers to 

execute an unexplained stack of documents at the end of a 

long workday, in a hotel parking lot. The majority’s 

“accommodation” euphemism flies in the face of the district 

court’s finding, after assessing conflicting evidence and 

making credibility determinations, that Elkhorn created an 

oppressive and coercive atmosphere.

In addition, the majority relies on the fact that Elkhorn 

did not expressly forbid Martinez-Gonzalez from asking for 

time to review the documents or to consult an attorney. See 

id. But as discussed, the district court found that Elkhorn 

created an atmosphere that precluded and discouraged the 

ability to review documents, ask questions, and consult 

advisors. Of course, Elkhorn did not expressly inform its 

workers: “sign these documents without reading them or 

consulting a lawyer or suffer termination.” If employers 

openly displayed such coercive tactics, there would be no 

need to apply the multi-factor test developed by the courts to 

determine coercion.

Finally, contrary to the majority’s characterization, 

neither I nor the district court engaged in a “simple boxchecking exercise.” Majority Opinion, p. 22 n.8. Rather, the 

district court applied the Odorizzi factors and I give 

appropriate deference to the district court’s application of 

those factors to the evidence presented at trial. In contrast, 

my colleagues in the majority erased all the boxes, discarded 

the district court’s factual findings, and wrote their own 

version of the facts based on a manufactured “totality of the 

circumstances” review. Id. at 25.

The majority cites Myers v. United States, 652 F.3d 1021 

(9th Cir. 2011), to support its disregard for the trial court’s 
48 MARTINEZ-GONZALEZ V. ELKHORN PACKING

factual findings. See Majority Opinion, p. 18. However, the 

panel in Myers concluded that there was clear error because 

the factual findings were “without support in inferences that 

may be drawn from the facts in the record.” Myers, 652 F.3d 

at 1036. The same cannot be said for the findings made by 

the district court in this case, each of which was linked to 

specific evidence developed during trial.

Under the proper standard of review, far from being 

clearly erroneous, the district court’s determination that 

Martinez-Gonzalez was subjected to economic duress and 

undue influence was firmly tethered to its review of the 

witness testimony and evidence presented during trial. As 

we have colorfully observed, “[t]o be clearly erroneous, a 

decision must strike us as wrong with the force of a fiveweek old, unrefrigerated dead fish.” Ocean Garden, Inc. v. 

Marktrade Co., Inc., 953 F.2d 500, 502 (9th Cir. 1991) 

(citation and alterations omitted).

The district court decision in this case comes nowhere 

close to meeting this standard. The “key facts” the majority 

contends the district court ignored, Majority Opinion, p. 18,

were, in fact, considered by the district court. The district 

court simply reached an opposite conclusion, to which we 

must “special[ly] defer[].” Allen, 283 F.3d at 1078 n.8. In 

sum, the district court’s finding of economic duress is amply 

supported by the evidence developed during the trial. The 

majority’s contrary finding is not.

The presence of either economic duress or undue 

influence was sufficient to rescind the Arbitration 

Agreements. See Nmsbpcsldhb v. Cnty. of Fresno, 152 Cal. 

App. 4th 954, 959 (2007) (explaining that under California 

law, a contract may be rescinded under various grounds, 

including undue influence and duress) (citing Cal. Civ. Code 

§ 1689). As the majority completely disregards the district 
MARTINEZ-GONZALEZ V. ELKHORN PACKING 49

court’s comprehensive factual findings following trial and 

the clear error standard of review in concluding otherwise, I 

respectfully dissent.