Vela v. Harbor Rail Services of California, Inc.

Filed 5/1/26
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


 ARTURO VELA,                              B344723

         Plaintiff and Appellant,          (Los Angeles County
                                           Super. Ct. No. 23STCV24281)
         v.

 HARBOR RAIL SERVICES OF
 CALIFORNIA, INC.,

         Defendant and Respondent.




      APPEAL from an order of the Superior Court of Los
Angeles County, David S. Cunningham III, Judge. Affirmed in
part, dismissed in part, treated in part as a petition for writ of
mandate and denied.
      Justice Law Corporation, Douglas Han, Shunt Tatavos-
Gharajeh and Talia Lux for Plaintiff and Appellant.
      Fox Rothschild LLP and Steven Gallagher for Defendant
and Respondent.
                    ________________________
                        INTRODUCTION
       The Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.)1
exempts from its application “contracts of employment” of
“railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” (§ 1.) Plaintiff Arturo Vela, who
worked for defendant Harbor Rail Services of California, Inc.
(Harbor) as a railcar repairman, claims the trial court erred in
compelling him to arbitrate claims relating to his employment
because he falls within this exemption. Vela also claims that,
because the FAA exempts him, the trial court erred in enforcing a
waiver of class claims contained in his agreement to arbitrate.
Under state law, Vela’s waiver is potentially unenforceable. If
federal law applies, it preempts such state law and the waiver is
enforceable.
       We find no error and affirm. The FAA applies to the
parties’ agreement to arbitrate and does not exempt Vela.
Accordingly, the trial court did not err in compelling arbitration.
Nor did the trial court err in striking the class claims, as Vela’s
waiver of those claims is enforceable under federal law.
      FACTUAL AND PROCEDURAL BACKGROUND
A.    Vela’s Employment with Harbor
      Harbor hired Vela as a rail freight car repairman on
May 19, 2021, and terminated him on October 11, 2021. On
May 10, 2021, prior to Vela beginning work, he and Harbor
executed a mutual agreement to arbitrate. Under the agreement,
the parties “agree[d] to the resolution by arbitration of all claims,


      1 All unspecified statutory references are to title 9 of the
United States Code.




                                  2
disputes, and/or controversies (collectively ‘claims’), whether or
not arising out of [Vela]’s employment or its termination, that
[Harbor] may have against [Vela] or that [Vela] may have against
[Harbor], its subsidiaries or affiliated entities, or against its
employees or agents in their capacity.” The agreement also
included a “[c]lass and [r]epresentative [a]ction [w]aiver” under
which the parties “agree[d to] . . . forego pursuing any covered
dispute on a class, collective, or representative basis and . . . not
[to] assert class, collective, or representative action claims
against the other in arbitration or otherwise,” with an exception
for “representative actions under the California Private
Attorneys General Act or any class, collective, or representative
claims that cannot be waived as a matter of law.”
B.    Vela’s Lawsuit
      Vela sued Harbor on October 5, 2023, asserting causes of
action under the Labor Code for unpaid overtime (id., §§ 510,
1198), unpaid meal period premiums (id., §§ 226.7, 512,
subd. (a)), unpaid rest period premiums (id., § 226.7), unpaid
minimum wages (id., §§ 1194, 1197), failure to timely pay final
wages (id., §§ 201, 202), noncompliant wage statements (id.,
§ 226, subd. (a)), and failure to reimburse business expenses (id.,
§§ 2800, 2802), and a related claim under the Unfair Competition
Law (Bus. & Prof. Code, § 17200 et seq.). Vela asserted these
claims on his own behalf and also on behalf of a would-be class of
current and former Harbor employees. Vela did not allege any
representative claims under the Labor Code Private Attorneys
General Act (Lab. Code, § 2698 et seq.).




                                 3
C.     Harbor’s Motion to Enforce the Arbitration
       Agreement
       On March 6, 2024, Harbor filed a motion to compel Vela’s
individual claims to arbitration and to dismiss and strike his
class claims. Harbor relied on the “[m]utual [a]greement to
[a]rbitrate” which Vela had signed “in connection with his
employment.”
       Harbor contended that the parties’ arbitration agreement,
including the class action waiver provision, was enforceable
under the FAA. Thus, argued Harbor, the court was required to
compel Vela’s claims to arbitration and to dismiss and strike his
class claims. Anticipating Vela’s argument that the arbitration
agreement fell within the FAA exemption for “contracts of
employment of seamen, railroad employees, or any other class of
workers engaged in foreign or interstate commerce” (§ 1), Harbor
asserted that Vela was not a “railroad employee[]” because
Harbor was not a railroad company. Harbor further argued that
Vela was not in a “class of workers engaged in foreign or
interstate commerce” because “[his] work consisted of making
repairs to trains that were decommissioned in [a railroad] yard,
awaiting inspection and repairs,” he did not inspect any
locomotives or move, drive, or operate any trains or freight cars,
and his work did not involve the “delivery of goods” or
“transport[ation of] any goods across state or foreign lines.”
       In a declaration, Harbor’s chief operations officer averred
as follows. Harbor conducts “freight car inspections and repairs
for a number of railroads.” Harbor controls, manages, and
oversees the work of its employees, who use Harbor’s equipment
to perform their work. During Vela’s employment, Harbor “was
under contract as an independent contractor for Pacific Harbor




                                4
Line (‘PHL’) to perform freight car inspections and repairs at
PHL’s train yard in Wilmington, California. Under [the]
contract, . . . PHL’s railroad customers, Burlington Northern
Santa Fe (‘BNSF[’]) and Union Pacific (‘UP’), would deliver their
freight cars using their locomotives to the PHL train yard in
Wilmington by stopping them on the interchange track in the
yard, disconnecting their locomotives, and leaving the freight
cars to sit on the track in the yard, awaiting inspection/repairs.”
At this point, the freight cars “were withdrawn from
service/decommissioned . . . and . . . were not useable until and
unless they passed inspection.” Harbor “employees then would
inspect the freight cars using quality control measures
established by Federal Regulations . . . [and] would make [any]
necessary repairs.” The freight cars were then “released to PHL,
and PHL eventually delivered them back to its railroad
customers (BNSF or UP) with PHL’s locomotive.” “[Vela] was
hired as and did work for Harbor as a [r]epairman at PHL.
[Vela]’s work . . . consisted of performing inspection, repair and
rebuilding of the decommissioned freight cars at the PHL train
yard in accordance to [sic] all A[ssociation of] A[merican]
R[ailroads] and F[ederal] R[ailroad] A[dministration] rules.”
      Vela does not dispute that the FAA (including any
applicable exceptions to it) governs the parties’ arbitration
agreement. In opposing the motion to compel arbitration, Vela
contended that the arbitration agreement was exempted from the
FAA because he was a “railroad employee” and a “worker[]
engaged in foreign or interstate commerce” under section 1. Vela
submitted a declaration in which he averred that he worked for
Harbor as a “[r]ailway [r]epairman” from May 2021 to October
2021; he was paid an hourly rate of $19; he repaired train cars




                                 5
following Association of American Railroads and Federal
Railroad Administration regulations and, more specifically, he
“change[d] trains’ wheels and brake pads, disassemble[d] and
reassemble[d] train cars, and . . . weld[ed] and fabricate[d] metals
for the ladders on the trains.”
      Vela argued that if the parties’ arbitration agreement was
exempted from the FAA, California law would apply in its place.
Vela asserted that under California law his class action waiver
was unenforceable under the test articulated in Gentry v.
Superior Court (2007) 42 Cal.4th 443 and further that Labor
Code section 229 exempted some of his claims from arbitration.
D.     The Trial Court Continues the Hearing to Receive
       Further Evidence
       In May 2024, the trial court issued a tentative ruling which
indicated as follows. Harbor had demonstrated the existence of
an agreement to arbitrate. The section 1 exemption for the
specified “contracts of employment” did not apply because Vela
had failed to show that the parties’ arbitration agreement “should
be interpreted as part of an employment contract as opposed to a
standalone agreement.” However, the hearing would be
continued to provide Vela “a chance to supplement the record” on
whether the arbitration agreement was part of a contract of
employment.
       The court also tentatively concluded that Vela was not a
“railroad employee” within the meaning of the section 1
exemption because Harbor was not a railroad, and Vela could not
rely on Harbor’s contract with PHL. However, Vela had shown
he was a transportation worker because Harbor’s “business [wa]s
substantially related to the railroad industry” and “[it] hired
[Vela] to do inspections and mechanic work on [its] behalf for the




                                 6
railroad clients.” Vela’s claim that the class action waiver was
unenforceable under state law was “premature” and “w[ould] not
be ripe unless and until the FAA-exemption issue [wa]s resolved,
and only if it [wa]s resolved in [Vela]’s favor,” and Vela’s
argument that the claims subject to Labor Code section 229
should be litigated was “also premature.”
       After hearing argument, the court modified the tentative
ruling in one respect. Whereas the initial tentative ruling
indicated Vela had shown he was a transportation worker, the
revised tentative ruling stated, “On balance, . . . because this is a
fairly novel issue, the [c]ourt is inclined to hold an evidentiary
hearing with live testimony. This will help to create a clear
picture of what, exactly, [Vela] did at work for [Harbor].”2 The
final tentative ruling continued the hearing for further evidence
not only as to whether Vela had shown the arbitration agreement
was part of a “contract of employment” but also as to whether
Vela qualified as a transportation worker.
E.    The Parties’ Supplemental Evidence and the Trial
      Court’s Ruling Granting Harbor’s Motion
      The parties submitted additional evidence on January 3,
2025. As relevant here, Vela submitted documents from his
personnel file maintained by Harbor and an interrogatory
response from Harbor indicating those documents, including the
arbitration agreement, were “customary for new hires to sign
upon initiating their employment with [Harbor].” Both parties


      2 Vela’s contention that the court found his “burden . . . as
to the transportation-worker issue” was “met” is meritless
because it relies solely on the tentative ruling and ignores the
trial court’s later modification to that ruling.




                                  7
submitted a copy of the “service agreement” (capitalization
omitted) between Harbor and PHL.
      In its supplemental brief, Harbor contended that Vela did
not fall within the section 1 exemption because he had failed to
show “a contract of employment required by [section 1]” and he
“was not a transportation worker because he did not actively or
directly move goods in interstate commerce as a repairman.”
      In his supplemental brief, Vela contended that he had
established a “contract of employment” in part because he was
“hired” by and worked for Harbor, and Harbor acknowledged in
discovery responses that the arbitration agreement was executed
in connection with Vela’s employment. Vela also contended he
was a “ ‘railroad employee[]’ ” because he “did railroad work.”
Vela did not address whether he was a “transportation worker.”
      On February 4, 2025, after hearing argument, the trial
court granted Harbor’s motion to compel Vela’s claims to
arbitration and to dismiss and strike his class claims. Vela
timely appealed.
                         DISCUSSION
A.    Appellate Jurisdiction
      We generally lack jurisdiction to review an order
compelling arbitration. (Elijahjuan v. Superior Court (2012) 210
Cal.App.4th 15, 19.) To establish appealability here, Vela
invokes the “ ‘death knell’ doctrine,” which allows immediate
appeals from “orders that effectively terminate class claims but
permit individual claims to continue.” (In re Baycol Cases I & II
(2011) 51 Cal.4th 751, 754.) The doctrine is premised on the
concern “that an individual plaintiff may lack incentive to pursue
his individual claims to judgment, thereby foreclosing any
possible appellate review of class issues.” (Id. at p. 758.) The




                                8
trial court’s order dismissing and striking Vela’s class claims
“effectively terminate[d Vela’s] class claims but permit[ted his]
individual claims to continue” (id. at p. 754) and is thus
appealable.
       But that does not mean the trial court’s order compelling
arbitration is also appealable. (See Nixon v. AmeriHome
Mortgage Co., LLC (2021) 67 Cal.App.5th 934, 943 [expressing
doubts “whether the judicially created death knell exception to
the one final judgment rule for an order dismissing class claims
extends to make appealable an otherwise nonappealable order
compelling arbitration when the two orders are issued
simultaneously”].)3 The Nixon court exercised its discretion to
treat that portion of the appeal directed at the order compelling
arbitration as a petition for writ of mandate and considered the
merits of that order. (Id. at p. 944.) We take the same approach
here, as the parties have fully briefed the issues and Harbor does
not object to our addressing them. Review of the order
compelling arbitration, which is based on the same grounds as
the order dismissing and striking the class claims, will not cause
any additional delay or subvert the purpose of the arbitration
statute. (See ibid.)




      3 Vela asserts that we have jurisdiction to review the
court’s order compelling arbitration under Franco v. Athens
Disposal Co., Inc. (2009) 171 Cal.App.4th 1277. Franco is
distinguishable because the class action waiver in that case
precluded class claims only in arbitration proceedings, and thus
the trial court’s order compelling arbitration effectively
terminated the plaintiff’s class claims. (Id. at pp. 1284, 1288.)




                                 9
B.     Standard of Review
       In deciding a motion to compel arbitration, “the trial court
sits as a trier of fact, weighing all the affidavits, declarations, and
other documentary evidence, as well as oral testimony received at
the court’s discretion, to reach a final determination.” (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) A
party opposing a motion to compel arbitration on the ground an
exemption applies “bear[s] the burden to demonstrate that the
exemption applies.” (Betancourt v. Transportation Brokerage
Specialists, Inc. (2021) 62 Cal.App.5th 552, 559.)
       We review the trial court’s factual findings for substantial
evidence. (Muro v. Cornerstone Staffing Solutions, Inc. (2018) 20
Cal.App.5th 784, 790.) Under the substantial evidence standard,
“ ‘we must presume the court found every fact and drew every
permissible inference necessary to support its judgment, and
defer to its determination of credibility of the witnesses and the
weight of the evidence.’ ” (Engineers & Architects Assn. v.
Community Development Dept. (1994) 30 Cal.App.4th 644, 653.)
However, “the application of law to undisputed facts ordinarily
presents a legal question that is reviewed de novo.” (Boling v.
Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912.) We
also review de novo a trial court order striking class allegations.
(Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53-54.)
The trial court’s order “is presumed correct, and if it is correct on
any theory, it must be affirmed regardless of the trial court’s
reasoning.” (Muro v. Cornerstone Staffing Solutions, Inc., supra,
at p. 789.)




                                  10
C.     The Trial Court Did Not Err in Compelling Vela’s
       Individual Claims to Arbitration
       As noted previously, Vela does not dispute the arbitration
agreement here is governed by the FAA. Under the FAA, “A
written provision in . . . a contract evidencing a transaction
involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction, or the
refusal to perform the whole or any part thereof, . . . shall be
valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract or as
otherwise provided in chapter 4.” (§ 2.) However, the FAA
exempts from its reach “contracts of employment of seamen,
railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” (§ 1.) The last category, i.e.,
“any other class of workers engaged in foreign or interstate
commerce,” (ibid.) is limited to “transportation workers” engaged
in foreign or interstate commerce. (Circuit City Stores, Inc. v.
Adams (2001) 532 U.S. 105, 109 [121 S.Ct. 1302, 149 L.Ed.2d
234].)
       Vela contends that the section 1 exemption applies, so that
enforceability of the parties’ arbitration agreement is ultimately
subject to California law instead of the FAA. If California law
applies, then Labor Code section 229 would render the
arbitration agreement unenforceable as to Vela’s claims for
unpaid wages. Conversely, if the arbitration agreement is
ultimately subject to the FAA, then Labor Code section 229 would
be preempted. (Garrido v. Air Liquide Industrial U.S. LP (2015)
241 Cal.App.4th 833, 844-845 [“The FAA preempts Lab[.] Code[,
§] 229, requiring enforcement of an arbitration agreement”].)




                               11
     The section 1 exemption applies if Vela is either a “railroad
employee[]” or a transportation worker. As we explain, he is
neither.4
      1.    Vela is Not a Railroad Employee
      Vela does not claim that Harbor is a “railroad” or that he is
a “railroad employee” by virtue of his employment by Harbor.5
Instead, he contends he was a “railroad employee” because he
provided train repair services to PHL under the contract between
that entity and Harbor. Even if we assume a repair and
inspection company like PHL is a “railroad,” this theory fails
because Vela did not have any contract with PHL and the
contract between PHL and Harbor cannot constitute a “contract
of employment” within the meaning of the section 1 exemption.
(Fli-Lo Falcon, LLC v. Amazon.com, Inc. (9th Cir. 2024) 97 F.4th
1190, 1196-1197 [“for a contract to be a contract of employment
covered by § 1, it must have a qualifying worker as one of the

      4 The parties also dispute whether Vela established that
the parties’ arbitration agreement was part of a “contract of
employment.” We need not address this issue because Vela’s
failure to establish he is either a “railroad employee” or
transportation worker is dispositive.
      5 As the United States Supreme Court has explained,
“When the FAA was adopted, . . . grievance procedures existed for
railroad employees under federal law [citation] and the passage
of a more comprehensive statute providing for the mediation and
arbitration of railroad labor disputes was imminent [citation]. It
is reasonable to assume that Congress excluded . . . ‘railroad
employees’ from the FAA for the simple reason that it did not
wish to unsettle established or developing statutory dispute
resolution schemes covering specific workers.” (Circuit City
Stores, Inc. v. Adams, supra, 532 U.S. at p. 121.)




                                12
parties”]; Amos v. Amazon Logistics, Inc. (4th Cir. 2023) 74 F.4th
591, 596 [agreement was not a “contract of employment” within
the meaning of § 1 because it “d[id] not promise work and
compensation to an individual employee, and it contain[ed] none
of the hallmarks of a traditional employment contract, such as
provisions regarding salary, benefits, and leave time,” and
“provide[d] instead for certain business services to be provided by
one business to another”].)
       New Prime Inc. v. Oliveira (2019) 586 U.S. 105 [139 S.Ct.
532, 202 L.Ed.2d 536], upon which Vela relies, is inapposite. In
New Prime, the United States Supreme Court addressed whether
“contracts of employment” as used in section 1 “refers only to
contracts that reflect an employer-employee relationship” or “also
encompasses contracts that require an independent contractor to
perform work,” and concluded that section 1 includes both types
of relationships. (New Prime Inc. v. Oliveira, supra, at pp. 113,
116.) Thus, under New Prime Vela’s agreement with Harbor
could qualify as a “contract of employment” whether Vela was a
traditional employee or an independent contractor, but nothing in
New Prime supports the proposition that the contract between
Harbor and PHL could be a “contract of employment” under
section 1. Nor does New Prime support the proposition that Vela
qualified as a “railroad employee.”6


      6 The plaintiff in New Prime contended the section 1
exemption applied because he “qualifie[d] as a ‘worker[] engaged
in . . . interstate commerce,’ ” not because he was a “railroad
employee.” (New Prime Inc. v. Oliveira, supra, 586 U.S. at
p. 113.) Although the high court suggested that the term
“ ‘railroad employee[]’ ” could encompass an individual working




                                13
       Vela also relies on the definition of an “ ‘employee’ ” of a
“ ‘carrier,’ ” i.e., a railroad, used in the Railway Labor Act of 1926
(45 U.S.C. § 151 et seq.) which Congress enacted a year after the
FAA. The Railway Labor Act of 1926 defined “ ‘employee’ ” to
include “every person in the service of a carrier (subject to its
continuing authority to supervise and direct the manner of
rendition of his service) who performs any work defined as that of
an employee or subordinate official in the orders of the Surface
Transportation Board.” (45 U.S.C. § 151.) Even if we assume
Congress intended this same definition of “railroad employee” to
apply to another title elsewhere in the United States Code
(namely section 1), Vela does not qualify as being “in the service
of” PHL. It is undisputed he had no direct employment
relationship with PHL and there is no evidence that PHL had or
exercised any authority to supervise or direct his work. To the
contrary, Harbor ’s chief operations officer declared that Harbor
“completely control[s], manage[s] . . . and oversee[s]” its
employees. In addition, Harbor’s agreement with PHL provided
that Harbor was “an independent contractor with the sole right to
supervise, manage, operate, control and direct the performance of
its obligations under this [a]greement.”
      2.    Vela Was Not a Transportation Worker
      Courts employ a two-step framework to analyze whether an
individual is a transportation worker exempt from the FAA
under section 1. (Southwest Airlines Co. v. Saxon (2022) 596 U.S.
450, 455 [142 S.Ct. 1783, 213 L.Ed.2d 27] (Saxon).) The first step


as an independent contractor for a railroad company (id. at
pp. 120-121), Vela does not contend that he had any agreement
with PHL, either as an employee or an independent contractor.




                                 14
is to “defin[e] the relevant ‘class of workers’ to which [the
individual] belongs.” (Ibid.) This determination is based on “the
actual work that the members of the class, as a whole, typically
carry out.” (Id. at p. 456.) The second step is to “determine
whether that class of workers is ‘engaged in foreign or interstate
commerce.’ ” (Id. at p. 455.)
       Saxon held that “any class of workers directly involved in
transporting goods across state or international borders falls
within [section] 1’s exemption.” (Saxon, supra, 596 U.S. at
pp. 456, 457 [finding the “class of workers who physically load
and unload cargo on and off airplanes on a frequent basis” to be
such a class (fn. omitted)].) The answer is not “so plain” “when
the class of workers carries out duties further removed from the
channels of interstate commerce or the actual crossing of
borders.” (Id. at p. 457, fn. 2.) In such cases, to fit within the
exemption, “[the] worker must at least play a direct and
‘necessary role in the free flow of goods’ across borders,” or, “[p]ut
another way, . . . must be actively ‘engaged in transportation’ of
those goods across borders via the channels of foreign or
interstate commerce.” (Id. at p. 458.) “Saxon’s bottom line is
that to qualify as a transportation worker, an employee’s
relationship to the movement of goods must be sufficiently close
enough to conclude that his work plays a tangible and
meaningful role in their progress through the channels of
interstate commerce.” (Ortiz v. Randstad Inhouse Services, LLC
(9th Cir. 2024) 95 F.4th 1152, 1160, italics added.)
       In Lopez v. Aircraft Service International, Inc. (9th Cir.
2024) 107 F.4th 1096, the Ninth Circuit held “that a fuel
technician who places fuel in an airplane used for foreign and
interstate commerce is a transportation worker engaged in




                                  15
commerce because a fuel technician ‘play[s] a direct and
necessary role in the free flow of goods across borders.’ ” (Id. at
p. 1101.) The court reasoned that refueling an airplane was “a
vital component of its ability to engage in the interstate and
foreign transportation of goods” and was thus “ ‘so closely related
to interstate and foreign commerce as to be in practical effect
part of it.’ ” (Ibid.)
       We distill from Saxon, Ortiz, and Lopez that to be a
transportation worker a person must play some role in the actual
transportation of goods, and Vela has not adduced evidence of
such involvement. Here, “the actual work” that workers in Vela’s
class “typically carr[ied] out” (Saxon, supra, 596 U.S. at p. 456)
was inspecting and repairing rail freight cars which had been
temporarily taken out of service and delivered to PHL’s yard for
the purpose of inspection. This type of work is too far removed
from the actual process of transporting goods to “play a direct and
‘necessary role in the free flow of goods’ across borders” or
constitute “active[] ‘engage[ment] in transportation,’ ” so as to
qualify Vela as an exempt transportation worker. (Id. at p. 458.)
It was only after Vela and his coworkers completed their tasks
that the freight cars were returned to actual service and again
were actively engaged in transportation. (E.g., Holley-Gallegly v.
TA Operating, LLC (C.D.Cal., Sept. 16, 2022, No. EDCV 22-593
JGB) 2022 WL 9959778 [truck mechanic who serviced trucks that
hauled goods across state lines was not a transportation worker
under Saxon because his connection to interstate commerce was
too attenuated], vacated on other grounds in Holley-Gallegly v.
TA Operating, LLC (9th Cir. 2023) 74 F.4th 997, 999.)
       Vela relies on Western Dairy Transport, LLC v. Vasquez
(Tex.App. 2014) 457 S.W.3d 458, where a Texas appellate court




                                16
held that an interstate trucking company mechanic qualified as a
transportation worker under section 1. The court applied “a
nonexclusive eight-part test”7 (Western Dairy Transport, LLC v.
Vasquez, supra, at p. 465) articulated by Lenz v. Yellow Transp.,
Inc. (8th Cir. 2005) 431 F.3d 348, 352, and concluded that the
plaintiff mechanic was a transportation worker under section 1
because it found four of the factors “weigh[ed] heavily in favor” of
that conclusion. (Western Dairy Transport, LLC v. Vasquez, at
p. 466.) We do not find the court’s analysis to be persuasive
because it predates Saxon, and the four factors upon which it
relied are no longer relevant under Saxon. The first factor,
“whether the employee works in the transportation industry” is
not relevant because Saxon directs that we focus instead on the
“actual work” performed by the employee. (Saxon, supra, 596
U.S. at p. 456; see also Bissonnette v. LePage Bakeries Park St.,
LLC (2024) 601 U.S. 246, 256 [144 S.Ct. 905, 218 L.Ed.2d 204]


      7 The court described the eight factors to be considered as
“(1) whether the employee works in the transportation industry;
(2) whether the employee is directly responsible for transporting
goods in interstate commerce; (3) whether the employee handles
goods that travel interstate; (4) whether the employee supervises
employees who are themselves transportation workers, such as
truck drivers; (5) whether like seamen or railroad employees, the
employee is within a class of employees for which special
arbitration already existed when Congress enacted the FAA;
(6) whether the vehicle itself is vital to the commercial enterprise
of the employer; (7) whether a strike by the employee would
disrupt interstate commerce; and (8) the nexus that exists
between the employee’s job duties and the vehicle the employee
uses in carrying out his duties.” (Western Dairy Transport, LLC
v. Vasquez, supra, 457 S.W.3d at pp. 465-466.)




                                 17
[“A transportation worker need not work in the transportation
industry to fall within the exemption from the FAA provided by
§ 1 of the Act”].) The other three factors, “which consider[ed] the
importance of trucks and truck mechanics to [the employer’s]
overall business” (Western Dairy Transport, LLC v. Vasquez,
supra, at p. 466) focus on the employer’s business as opposed to
the employee’s actual work as required under Saxon.
       Vela relies on other cases applying the section 1 exemption
but they are all distinguishable because they involved workers
who played some role in the actual transportation of goods.
(Betancourt v. Transportation Brokerage Specialists, Inc., supra,
62 Cal.App.5th at p. 554 [package delivery driver]; Nieto v.
Fresno Beverage Co., Inc. (2019) 33 Cal.App.5th 274, 281
[delivery truck driver]; Palcko v. Airborne Express, Inc. (3d. Cir.
2004) 372 F.3d 588, 593 [employee who performed “direct
supervision of package shipments”].) Furthermore, Vela’s
contention that his case is similar to Betancourt and Nieto
because “[his] rail car repairs were a ‘phase’ of a continuous
movement of interstate goods to their destinations” lacks support
in the record. Although the contract between Harbor and PHL
contemplated the possibility that some cars left for inspection
might have goods in them, there is no evidence that this actually
occurred or that Vela and his fellow class of workers ever, much
less typically, inspected or repaired freight cars which were still
carrying goods.
       Lastly, Vela cites cases outside of the FAA context which he
contends “held railroad repairmen are engaged in interstate
commerce.” None of these cases involves a worker who repaired
trains, much less one who repaired rail freight cars while they




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were out of service. Furthermore, none of the cases applies the
test articulated in Saxon.
D.    The Trial Court Did Not Err in Dismissing and
      Striking Vela’s Class Claims
      Because the FAA applies and Vela does not fall within the
exemption set forth in section 1, the trial court did not err in
dismissing and striking Vela’s class claims. (See Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 359 [FAA
preempts California law holding that class action waivers of the
type at issue here are unenforceable].)
                        DISPOSITION
      The order dismissing and striking Vela’s class claims is
affirmed. The appeal of the order compelling arbitration is
dismissed as a nonappealable order. Deeming that portion of the
appeal as a petition for writ of mandate, the petition is denied.
Harbor is awarded its costs on appeal.
     CERTIFIED FOR PUBLICATION



                                         WEINGART, J.


We concur:




             BENDIX, Acting P. J.        M. KIM, J.




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