Judge Carolyn M. Caietti, Case Number: 37-2024-00003972-CU-WT-CTL, Date: 2024-06-21 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2024-00003972-CU-WT-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Wrongful Termination Motion Hearing (Civil) 37-2024-00003972-CU-WT-CTL NUNN VS AMERICAN GOLF CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants American Golf Corporation and Drive Shack Inc.'s (collectively 'Defendants') (Motion to Compel Arbitration is DENIED.

Preliminary Matters Plaintiff Treimon Nunn's objections are overruled. (ROA #37.) Discussion Based on the evidence provided, including a copy of the arbitration agreement ('ARB') (ROA # 15 – Declaration of Carol Bryant 'Bryant Decl.', Ex. 1), Defendants' records showing Plaintiff's confirmation of receipt of the ARB and that he read the document ('Confirmation Page') (Id. at Ex. 3), Defendants have met their burden of proving the existence of an arbitration agreement but failed to demonstrate by the preponderance of the evidence that Plaintiff actually consented to the ARB.

In ruling on a motion to compel arbitration, a court must first determine whether an agreement to arbitrate exists. (Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1283.) This is done in a summary process, with the moving party bearing the burden of proving its existence by a preponderance of the evidence, and the opposing party bearing the same burden in proving any fact necessary to any defense to enforcement. (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) During this process, the '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.) The burden of production however may shift in a three-step process. First, the moving party must produce 'prima facie evidence of a written agreement to arbitrate the controversy.' (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) This can be done by attaching a copy of the agreement with the opposing party's signature, or by setting forth the agreement's provisions in the motion. (Id.) At this stage, the moving party is not required to comply with normal procedures for document authentication. (Id.) If the moving party meets its initial burden, the opposing party must then produce evidence challenging the authenticity of the agreement. (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1120.) This can be done in various ways including a declaration 'under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not Calendar No.: Event ID: TENTATIVE RULINGS

3125066 42 CASE NUMBER: CASE TITLE: NUNN VS AMERICAN GOLF CORPORATION [IMAGED] 37-2024-00003972-CU-WT-CTL remember signing the agreement. (Gamboa, supra, 72 Cal.App.5th at 165.) If the opposing party meets their burden, the burden then shifts back to the moving party to establish by a preponderance of the evidence, with admissible evidence, a valid arbitration agreement between the parties. (Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 815.) Here, Defendants met their initial burden by attaching copies of the ARB and a screenshot of what Plaintiff would have been presented with as an employee, a copy of the New Co-Worker Authorization and Acknowledgment Form ('Coworker Form'), and a screenshot of Defendants' portal showing that Plaintiff confirmed that he had received and read both the ARB and the Coworker Form. (Bryant Decl., Ex. 1-3, 5.) Plaintiff challenged the existence of a valid arbitration agreement and presented evidence in the form of his declaration, stating that he does not recall seeing the ARB or the Coworker Form and does not recall receiving an email from Defendants or ADP related to those specific documents. (ROA # 36 – Declaration of Treimon Nunn 'Nunn Decl.', ¶¶ 4-10.) Plaintiff also argued that Defendants' own documents don't demonstrate that he consented to the ARB.

As such, the burden shifted back to Defendants to demonstrate the validity of the ARB.

'A party's acceptance of an agreement to arbitrate may be express, as when a party signs the agreement. A signed agreement is not necessary, however, and a party's acceptance may be implied in fact.' (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) In determining whether receipt of and acknowledgment of an arbitration agreement by an employee constitutes acceptance of the agreement, courts consider various factors including the actual language and circumstances of how it was presented. (See Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 381 [agreement valid based on employee's acknowledgment of receipt of agreement, which included statement that employee is deemed to have consented to agreement by receipt of handbook]; But see Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1519 [arbitration agreement in employee handbook not binding because employer failed to call attention to arbitration provision and employee's acknowledgment of handbook alone was insufficient].) Here, Defendants presented evidence that Plaintiff was provided with an email that provided him with access to ADP's website based on his personal information, that he was required to create a password to gain access to his information, and that Defendants would not have had access to his password.

(Bryant Decl., ¶¶ 11-14.) Defendants also presented evidence that Plaintiff was separately presented with the ARB and required to check the box confirming receipt of it. (Bryant Decl., ¶¶ 15-17, Ex. 2-3.) Additionally, the separate Coworker Form included the following 'ACKNOWLEDGMENT OF RECEIPT OF AMERICAN GOLF'S POLICY AGAINST HARASSMENT...., AND ARBITRATION AGREEMENT: I have received copies of these materials, have read and understand them, and will comply with all applicable provisions herein' and that adherence to the policies in the handbook are a condition of employment. (Bryant Decl., ¶¶ 19-20, Ex. 3, 5.) Both the ARB and Coworker Form, however, contained signature lines with language directly above stating that 'BY SIGNING BELOW, I ACKNOWLEDGE THAT I UNDERSTAND AND VOLUNTARILY AGREE WITH ALL OF THE ABOVE TERMS.' None of the documents contain signatures and more importantly the box checked by the Plaintiff only states that 'I certify that I have read the policy above.' As such, there is no language making it clear that by checking the box the Plaintiff was actually accepting the terms of the agreement.

Considering the ambiguous and conflicting terms of the documents, the evidence relied up by Defendants does not demonstrate that Plaintiff agreed to be bound by the terms of the ARB. As such, Defendants have not met their burden of demonstrating a valid agreement.

For these reasons the motion is DENIED.

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3125066 42 CASE NUMBER: CASE TITLE: NUNN VS AMERICAN GOLF CORPORATION [IMAGED] 37-2024-00003972-CU-WT-CTL If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Plaintiff is ordered to serve notice of the Court's final ruling by June 25, 2024.

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