Filed 3/28/23 Menjivar v. Field Fresh Foods CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 THREE

ERICK RIVERA MENJIVAR,

Plaintiff and Respondent,

v.

FIELD FRESH FOODS 

INCORPORATED,

Defendant and Appellant.

B321444

(Los Angeles County

Super. Ct. No. 21STCV23204)

APPEAL from an order of the Superior Court of 

Los Angeles County, Christopher K. Lui, Judge. Reversed and 

remanded for further proceedings.

McDermott Will & Emery, Maria C. Rodriguez, Marjorie C. 

Soto, and Ashley N. Attia for Defendant and Appellant.

Proxy Law Firm, Rana Nader and Hengameh Safaei for 

Plaintiff and Respondent.
2

_________________________

Defendant Field Fresh Foods Incorporated (Field Fresh)

appeals from the trial court’s order denying its motion to compel

arbitration of sexual harassment claims brought by plaintiff 

Erick Rivera Menjivar. We reverse and remand for further 

proceedings in light of a change in applicable law that took place 

after the trial court issued its decision.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2020, Field Fresh hired Menjivar, a 

monolingual Spanish speaker who was then 21 years old, to clean 

and sanitize the company’s equipment at its Gardena 

warehouse.1 In April 2021, Menjivar quit his job and two months 

later, filed a lawsuit against Field Fresh and his former 

supervisor, raising several claims under California’s Fair 

Employment and Housing Act (FEHA) (Gov. Code, § 12900 et 

seq.) and other related provisions.

Menjivar’s complaint alleged that during his employment

with Field Fresh, Menjivar was subject to sexual harassment by 

his supervisor, and, despite reporting it to management, the 

harassment continued until it escalated into sexual assault and 

battery. The complaint alleged that Menjivar resigned from his 

employment with Field Fresh because he could no longer endure 

the harassment.

1 For completeness, we note that Menjivar’s complaint 

alleges that Field Fresh hired him in January 2019. For 

purposes of this appeal, the parties do not dispute that Menjivar 

started his employment with Field Fresh in January 2020.
3

In August 2021, Field Fresh moved to compel arbitration. 

Attached to the motion was a declaration by Marco Prudente, 

Field Fresh’s “Safety Coordinator,” who attested to several facts 

based upon his “own personal knowledge, or knowledge based 

upon [his] review of company records.” Prudente averred that on 

Menjivar’s first day of work, Menjivar “reviewed and signed” a 

four-page Spanish-language agreement to arbitrate (the 

agreement), a copy of which was attached to Prudente’s 

declaration and appeared to bear the initials “E.R.” on each page 

and a signature on the last page.2

Menjivar filed an opposition to Field Fresh’s motion to 

compel in January 2022. In a declaration, Menjivar attested to 

the following facts: On his first day of work, Menjivar reported to 

the office of Field Fresh’s human resources manager, whose name 

was “Maria” (last name unknown). One of Maria’s assistants 

gave Menjivar a stack of documents and informed him that he 

was required to complete and sign all of the “paperwork” before 

he could begin employment with Field Fresh. He was given less 

than 30 minutes to complete and sign all of the documents, and 

had no opportunity to ask any questions. Menjivar did not know 

that the paperwork Field Fresh required him to sign “included a 

waiver of [his] right to file a case in court.” Menjivar reviewed a 

copy of the agreement “[i]n connection with this case” and 

acknowledged that the copy “contains [his] signature.” Menjivar

also filed evidentiary objections to the portion of Prudente’s 

declaration that stated Menjivar “reviewed and signed a physical 

2 An unsigned English translation of the agreement was also 

attached to the Prudente declaration.
4

copy of Field Fresh’s Arbitration Agreement” as lacking 

foundation.

In February 2022, the trial court issued a tentative order 

sustaining Menjivar’s evidentiary objection on the ground that 

Field Fresh had failed to authenticate the document that it 

alleged was a valid arbitration agreement between the parties. 

The court indicated that it would continue the hearing on the 

motion to compel to give Field Fresh an opportunity to 

sufficiently authenticate the document. The court went on to 

analyze the merits of Field Fresh’s motion to compel, and 

tentatively granted the motion with the caveat that Field Fresh

would first need to sufficiently authenticate the document that 

purported to be the underlying arbitration agreement. The court 

set a briefing schedule on the issue of authentication only and 

continued the hearing on the motion to compel.

In March 2022, Field Fresh filed a supplemental

declaration from Prudente, in which he averred: “In my position 

[as Safety Coordinator], I am familiar with Field Fresh’s 

employment forms and policies and I have access to all current 

and prior employee personnel files containing these forms and 

policies.” Prudente further stated that “[i]t is Field Fresh’s policy 

to enter into binding arbitration agreements with its employees, 

and pursuant to this policy, employees sign binding arbitration 

agreements with Field Fresh when hired. Once signed, the 

agreement is placed in the employee’s personnel file where it 

becomes a permanent part of the employee’s employment record.” 

According to Prudente, he had “access to and ha[d] reviewed” 

Menjivar’s personnel file, the file was maintained in Field Fresh’s 

“normal course of its business,” and the previously produced 
5

Spanish-language arbitration agreement “was recovered” from

Menjivar’s file.

Later that month, Menjivar filed a supplemental 

declaration averring that he did not recall seeing or signing the 

agreement, other than in connection with reviewing the 

document for the purposes of this case. Menjivar also objected to 

Prudente’s statement that Menjivar “signed the Agreement” for a 

lack of foundation, and to his statement that the attached copy of 

the agreement was a “true and correct copy” for lack of 

foundation and authentication. According to Menjivar, because 

Prudente did not state he was a duly authorized custodian of 

records or other qualified witness with authority to certify the 

agreement, the agreement was inadmissible.

In April 2022, after hearing argument from the parties, the 

trial court denied Field Fresh’s motion to compel in a written 

decision. The court held that Field Fresh failed to meet its 

burden of authenticating the agreement because the 

supplemental declaration by Prudente only established that the 

agreement came from Menjivar’s file, but did not address the 

circumstances of its execution. In other words, Field Fresh did 

not provide evidence of a factual scenario, based on a declarant’s 

personal knowledge, where Menjivar “would necessarily have 

been presented a copy of the arbitration agreement as a condition 

of employment, and that it would have been placed in Plaintiff’s 

file after being signed.”

Field Fresh timely appealed from the April 2022 order. 

After the parties filed their briefs on the merits, we invited them 

to file supplemental briefing to address the decision in Iyere v. 

Wise Auto Group (2023) 87 Cal.App.5th 747 (Iyere), which was 

issued while the matter was pending appeal.
6

DISCUSSION

A. Applicable law and standard of review

California and federal law favor arbitration. (St. Agnes 

Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 

1195.) That policy does not apply, however, where the parties 

have not agreed to arbitrate their dispute. (Espejo v. Southern 

California Permanente Medical Group (2016) 246 Cal.App.4th 

1047, 1054.)

Before granting a motion to compel arbitration, a trial court 

must first “determine[ ] that an agreement to arbitrate the 

controversy exists.” (Code Civ. Proc., § 1281.2.) The court makes 

this determination in a summary proceeding (Code Civ. Proc., 

§ 1290.2), sitting “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.” (Engalla v. Permanente Medical Group, Inc.

(1997) 15 Cal.4th 951, 972.) The party seeking to compel 

arbitration carries the burden of persuasion to show, by a 

preponderance of the evidence, that the parties agreed to 

arbitrate their dispute. (Rosenthal v. Great Western Fin. 

Securities Corp. (1996) 14 Cal.4th 394, 413.)

The summary procedure under Code of Civil Procedure,

section 1290.2 involves a three-step burden shifting framework. 

(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 

158, 165 (Gamboa).) In the first step, the party moving to compel 

arbitration carries the initial burden to present prima facie 

evidence of an arbitration agreement. (Ibid.) The moving party 

can attach to its motion a copy of the arbitration agreement 

“purporting to bear the [opposing party’s] signature.” (Bannister 

v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543–544.) 
7

Or the moving party can set forth verbatim in its motion the 

agreement’s provisions. (Gamboa, at p. 165; see also Cal. Rules 

of Court, rule 3.1330 [“The provisions must be stated verbatim or 

a copy must be physically or electronically attached to the 

petition and incorporated by reference.”].) At this initial step, “it 

is not necessary to follow the normal procedures of document 

authentication.” (Condee v. Longwood Management Corp. (2001) 

88 Cal.App.4th 215, 218.) If the moving party establishes the 

existence of an arbitration agreement, and the nonmoving party 

does not challenge the agreement’s validity or otherwise establish 

an exception to arbitration, the court must order the parties to 

arbitrate their dispute. (Id. at pp. 218–219.)

If, on the other hand, the nonmoving party does challenge 

the existence of a valid arbitration agreement between the 

parties, then the second step is triggered. In this second step, 

“the opposing party bears the burden of producing evidence to 

challenge the authenticity of the agreement.” (Gamboa, supra, 

72 Cal.App.5th at p. 165; see also Iyere, supra, 87 Cal.App.5th at 

p. 755 [“If the movant bears its initial burden, the burden shifts 

to the party opposing arbitration to identify a factual dispute as 

to the agreement’s existence—in this instance, by disputing the 

authenticity of their signatures”].) At this second step, the 

“opponent need not prove that his or her purported signature is 

not authentic, but must submit sufficient evidence to create a 

factual dispute and shift the burden back to the arbitration 

proponent . . . .” (Iyere, at p. 755.)

If the party opposing arbitration meets its burden of 

producing evidence to challenge the authenticity of the 

agreement, then in the third step, the burden of proof shifts back 

to the moving party to “establish with admissible evidence a valid
8

arbitration agreement between the parties.” (Gamboa, supra, 72 

Cal.App.5th at p. 165.) “The burden of proving the agreement by 

a preponderance of the evidence remains with the moving party.” 

(Id. at pp. 165–166.) In this third step, the moving party may

submit reply evidence establishing the agreement’s validity. (See 

Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 794 [court 

properly admitted moving party’s evidence submitted on reply 

because nonmoving party placed the arbitration agreement’s 

validity at issue in his opposition papers].)

Generally, we review a court’s order denying a motion to 

compel arbitration for abuse of discretion, unless the appeal 

raises only a pure question of law, which we review de novo.

(Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 

1406.)

B. Menjivar did not meet his burden of 

challenging the authenticity of the agreement

at step two of the burden shifting framework

As we discussed in the section summarizing the 

proceedings below, the parties appeared to have focused 

exclusively on whether Field Fresh carried its burden of 

establishing with admissible evidence the existence of a valid 

arbitration agreement at step three of the burden shifting 

framework. The court found that Field Fresh failed to carry its 

burden at this step and thus, denied the motion to compel.

Implicit in the court’s ruling that Field Fresh failed to carry 

its burden at step three is the necessary finding that Menjivar 

carried his burden at step two to challenge the authenticity of the 

arbitration agreement. There are two cases that squarely 

address whether Menjivar sufficiently met his burden at step 
9

two: Gamboa, supra, 72 Cal.App.5th 158, and Iyere, supra, 87 

Cal.App.5th 747.

Gamboa involved an arbitration agreement with a 

handwritten signature. The party opposing arbitration proffered 

a declaration stating under penalty of perjury that “she did not 

recall the agreement and would not have signed it if she had been 

aware of it.” (Gamboa, supra, 72 Cal.App.5th at p. 167.) The 

appellate court held that this evidence was sufficient to satisfy 

the party’s burden at step two to create a factual dispute as to the 

authenticity of the agreement. (Id. at p. 168.)

Iyere, which was decided after the trial court issued its 

decision and while this matter was pending on appeal, also 

involved an arbitration agreement with a handwritten signature. 

The party opposing arbitration in Iyere similarly proffered a 

declaration stating that he did not remember signing the 

agreement and would not have done so had he understood he was 

agreeing to arbitration. (Iyere, supra, 87 Cal.App.5th at p. 753.) 

In reversing the trial court’s order denying the motion to compel, 

the appellate court expressly disagreed with Gamboa and held 

that in the context of an arbitration agreement bearing a 

handwritten signature, merely testifying or declaring under oath 

that a party does not remember signing an arbitration agreement 

does not create a factual dispute as to the authenticity of the

agreement at the second step of the burden shifting process. (See 

Iyere, at p. 758 [“the fact that that person does not recall signing 

the agreement neither creates a factual dispute as to the 

signature’s authenticity nor affords an independent basis to find 

that a contract was not formed”].)

We agree with Iyere insofar as the decision holds that a 

party who is challenging an agreement appearing to bear their
10

handwritten signature must present more evidence than simply 

testifying or declaring under penalty of perjury that they do not 

remember signing the agreement to create a factual dispute 

regarding the authenticity of the agreement. For instance, the 

party could testify or state under penalty of perjury that the 

proffered signature does not resemble their actual handwritten 

signature, or that they did not sign the agreement, or, as 

suggested by Iyere, that the signature is “inauthentic or forged.”3 

(Iyere, supra, 87 Cal.App.5th at p. 758.)

Here, the arbitration agreement proffered by Field Fresh 

bears the initials “E.R.” on the bottom of the first three pages,

and a signature purporting to be Menjivar’s on the last page.

Furthermore, in his initial declaration in opposition to Field 

Fresh’s motion to compel, Menjivar stated that he reviewed a 

copy of the agreement and acknowledged that the copy “contains 

[his] signature.” Under these circumstances, evidence that 

Menjivar did not remember signing this agreement is insufficient 

to create a factual dispute as to the authenticity of the agreement 

at step two and thus, Menjivar failed to carry his burden at step 

two. Because we conclude that the trial court applied an 

3 While we certainly recognize, as Menjivar points out in his 

supplemental briefing, that an image of a person’s signature can 

be copied from one document and added to another document 

through widely available technology, a person faced with an 

agreement bearing an image of their signature could still 

challenge the authenticity of the document by, for example,

testifying or stating under penalty of perjury that while the

signature may look like their handwritten signature, they did not 

place the image of the signature on that document, or that they 

did not sign that document.
11

incorrect legal standard at the second step of the framework, we 

need not reach the issue of whether the trial court’s 

determination that Field Fresh failed to carry its burden at step 

three was erroneous. (See, e.g., Engalla v. Permanente Medical 

Group, Inc., supra, 15 Cal.4th at pp. 972–973 [application of 

incorrect legal standard as to petition to compel arbitration 

required remand for further proceedings, in light of prior 

confusion in case law].)

Because neither the parties nor the trial court had the 

benefit of the Iyere decision4, and because Iyere created a change 

in this particular area of law, we remand the matter to the trial 

court to conduct further proceedings consistent with this opinion 

and to afford the parties an opportunity to develop the record 

further.5

4 To be clear, we do not fault the trial court for its decision. 

At the time of the underlying proceedings, Iyere had not been 

decided, and the supplemental declaration filed by Menjivar 

wherein he averred that he did not remember signing the 

agreement was sufficient under Gamboa at the time to create a 

factual dispute.

5 Given that we are remanding the matter for further 

proceedings as to step two, if the trial court determines that 

Menjivar is able to carry his burden at step two with additional 

evidence, nothing in our decision precludes the trial court from 

revisiting prior rulings made as to step three, or ruling on 

evidentiary objections previously raised by Menjivar.
12

DISPOSITION

The order denying Field Fresh Foods Incorporated’s motion 

is reversed and the matter is remanded for further proceedings in

accordance with this opinion. Because our reversal is based on a 

change in the law, the parties shall bear their own costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

NGUYEN (KIM), J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.