Judge: Carolyn M. Caietti, Case: 37-2023-00016733-CU-OE-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00016733-CU-OE-CTL MASHOUF VS PERRY FORD OF NATIONAL CITY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 12/13/2023

Defendants Perry Ford of National City, LLC and Perry Automotive Group, Inc.'s Motion to Compel Arbitration is DENIED.

Preliminary Matters Plaintiff's objections are overruled. (ROA 39.) Defendants' reply objections to Plaintiff's declaration are overruled. (ROA 43.) Defendants' reply objections to the Declaration of Michael Yellin are overruled. (ROA 44.) However, the Court has not considered arguments made in the declaration.

Plaintiff is admonished for admittedly violating California Rules of Court, rule (CRC) 2.108 in order to be within the 15-page limit of CRC 3.1113(d) and not timely applying for leave under rule 3.1113(e). There does not appear to be any reason why the opposition could not have been made within the page limit.

This puts more burden on the Court and its already heavily impacted law and motion calendar. The Court expects all parties to follow all laws and rules of Court.

Discussion Based on the evidence provided, including a copy of Defendants' Employee Acknowledgment and Agreement, Defendants did not prove the existence of an arbitration agreement. (ROA 34 – Declaration of Raquel Falk, at Ex. A.) Under Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165, Defendants met their initial burden to present prima facie evidence of an arbitration agreement. (Exhibit A; see also, Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218 [at this initial step, 'it is not necessary to follow the normal procedures of document authentication.'].) But Plaintiff challenged the existence of a valid arbitration agreement between the parties, triggering the second step. 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 v. Wise Auto Group (2023) 87 Cal.App.5th 747, 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3064274  43 CASE NUMBER: CASE TITLE:  MASHOUF VS PERRY FORD OF NATIONAL CITY [IMAGED]  37-2023-00016733-CU-OE-CTL 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.) In Gamboa, the opposing party met her burden on the second step 'by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it...' (Gamboa, at p. 167.) Here, Plaintiff declared he is unsure what documents he signed, he reviewed Exhibit A and does not recall seeing the document before or while employed and does not believe he signed it. (Declaration of Nader Mashouf, at ¶¶ 12-14.) Plaintiff also makes clear he was instructed to sign the documents to keep his job and/or get paid. Thus, Plaintiff met his burden.

Then in the third step as described by Gamboa, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. (Id., at p. 165-66.) Gamboa explained the moving party did not have to authenticate the nonmoving party's signature on the arbitration agreement and could have met its burden in other ways, including a declaration from the moving party's custodian of records, but that 'proffering no admissible evidence was insufficient.' (Id., at p. 171.) Here, Defendants did not provide any evidence in reply. They also did not address Plaintiff's reliance on Gamboa.

Further, and significant for the Court, the Complaint alleges Plaintiff started his employment in 2013. The Falk Declaration states 'Defendant first employed Plaintiff...around September 10, 2015.' (Emphasis added.) Plaintiff's declaration again maintains he was hired in 2013. Defendant does not address this in reply, so right away there is an inconsistency in the timing of when Defendants hired Plaintiff and when he signed the alleged agreement.

While Falk testified when 'new employees review the onboarding package,' she remains nearby and available to answer questions, she does not declare she was nearby for Plaintiff or saw Plaintiff sign the agreement. Plaintiff declared he does not have a recollection of Falk being present when he was instructed to sign any documents.

Falk also testified she reviewed documents in Plaintiff's personnel file that were signed contemporaneously with Exhibit A and the signatures appear to be the same. But those documents are not identified, supporting Plaintiff's position that he was 'handed a stack of papers' and told 'If I wanted to get paid, I better sign everything.' Given these inconsistencies and in light of Gamboa, Defendants did not meet their burden of proving the agreement by a preponderance of the evidence, which remained with them throughout the motion.

Accordingly, it is unnecessary to assess Plaintiff's unconscionability defense.

For these reasons, the motion is DENIED.

Concluding Orders The Case Management Conference remains on calendar.

The Court will hear from Plaintiff regarding the status of Defendants Saumitro Banerjee and Kamran 'Doe' as the Court did not enter Plaintiff's requests for dismissal.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant is ordered to serve notice of the Court's final ruling by March 26, 2024.

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