Judge Christopher K. Lui, Case Number: 22STCV39371, Date: 2023-09-06 Tentative Ruling

Plaintiff alleges that she was terminated in retaliation for complaining about health and safety violations at work, and also on the basis of having taking medical leave.

Defendants Five Acres — The Boys’ and Girls’ Aid Society of Los Angeles erroneously sued as Five Acres — The Boys & Girls Aid Society of LA, Five Acres, Five Acres Agency LLC, Jennifer Woolery, Trecia Mongal, and Evangelina Miranda move to compel arbitration and stay this action.

The Court continues the hearing on this motion, to November 8, 2023 at 8:30 a.m., for further argument and an evidentiary hearing regarding Plaintiff’s purported electronic signature on the agreement to arbitrate this dispute. Witnesses are to personally appear to testify.

Defendants’ request that the Court take judicial notice of the Complaint filed in this action is GRANTED.

No. 1: OVERRULED. Goes to weight. Best Evidence Rule was repealed in 1998; Secondary Evidence Rule, Evidence Code § 1521 limits the use of secondary evidence to prove the content of a writing, which is not the issue here.

No 2: OVERRULED. Goes to weight. Best Evidence Rule was repealed in 1998; Secondary Evidence Rule, Evidence Code § 1521 limits the use of secondary evidence to prove the content of a writing, which is not the issue here.

No. 3: OVERRULED as to whether she saw and consent to arbitration agreement—goes to weight; SUSTAINED as to what she would have done—speculative.

California favors arbitration. (Haworth v. Superior Court (2010) 50 Cal.4^th 372, 380.) Civ. Proc. Code, §1281.2 provides:

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; or

(b) Grounds exist for the revocation of the agreement.

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1343; Code Civ. Proc., § 1281.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving by a preponderance of evidence any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356.) The court may weigh the evidence by considering affidavits, declarations, documents and oral testimony. (Id. at 357.)

The basis for this motion is an arbitration agreement purportedly signed by Plaintiff electronically on November 21, 2016. (Declaration of Elizabeth Gonzalez, Exh. 1.) The only proof of this, however, is a statement typed at the bottom of the last page stating:

Felicia Alexander acknowledged this at 1:27 PM (Pacific Standard Time) on 11.21.2016 (credentialed by her e3 login).

This is not conclusive proof that Plaintiff electronically signed the arbitration agreement.

never received any arbitration agreement, nor did I sign or acknowledge any arbitration agreement. I understand that Defendants claim that I signed the arbitration agreement at 1:27 p.m. on November 21, 2016. I know for certain that I did not sign, receive, or agree to any arbitration agreement at that time, or any other time while I worked for Defendants.

3. Not only did I never sign, receive, acknowledge, or consent to any arbitration

agreement with the Defendant at any point in time, but also, had I even been provided with one (I was not), I would not have agreed to sign or enter into an arbitration agreement had I been presented with one. Additionally, I was never provided with any arbitration rules.

The Court does not consider the text message between Plaintiff and Damion because the Court has sustained Defendants’ evidentiary objections on the ground of hearsay in that Plaintiff is offering her own statement for the truth of the matter asserted, i.e., that she did not agree to the arbitration agreement. Plaintiff’s citation to Evidence Code section 1250, the state of mind exception to the hearsay rule, is inapt. The statement “No I didn’t but I think I will have to next time” in response to an inquiry about whether Plaintiff signed an arbitration agreement is not an expression of Plaintiff’s “then existing state of mind, emotion, or physical sensation.” It is a statement offered to prove the truth of its content. It is also a statement of memory being offered to prove the truth of the fact remembered, which is expressly excluded from the state of mind exception under Evidence Code section 1250(b). As the Court of Appeal has explained,

Under section 1250 subdivision (b) statements of memory or belief may not be admitted to prove a fact remembered or believed. This is because the admission of such declarations would result in the virtual elimination of the hearsay rule (People v. Hamilton, supra, 55 Cal.2d 881, 895–896, 13 Cal.Rptr. 649, 362 P.2d 473). “Ed hit me with a rolled up newspaper” is precisely the type of statement section 1250 subdivision (b) proscribes. It is a statement of [the declarant’s] memory of an event, offered to prove the event occurred. All of the traditional hearsay dangers are inherent in this statement. [Declarant’s] memory, perception, narration and sincerity are all in question.

If an employee denies signing, or even indicates a failure to recall electronically signing the agreement, the moving party has the burden of proving by a preponderance of the evidence that the electronic signature is authentic. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.)

An employer may do this by explaining how the employees name could only have been placed on the arbitration agreement by a person using the employee’s unique login ID and password, that the date and time of the signature is accurately reflected next to the electronic signature, that all employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements, and thus, the electronic signature on the arbitration agreement was apparently made by the employee. (Ruiz, supra, 232 Cal.App.4th at 844.)

Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: “(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Civ. Code, § 1633.9, subd. (a), italics added.)

Here, Defendants offer the following evidence regarding Plaintiff’s purported electronic signature on the arbitration agreement in the form of the Declaration of Elizabeth Gonzalez, which states as follows:

6. In or around 2015, Five Acres implemented DATIS e3, a virtual human resources and payroll system. On DATIS e3, users are prompted and notified to review documents from Human Resources and then electronically sign and date through their acknowledgment when they are either initially hired or receive a change in job title. Each employee has their own unique password that they create. Only the employee has access to their DATIS e3 account and the

employee is the only one who can acknowledge and credential documents such as arbitration agreements and employee handbook acknowledgments. In order to acknowledge and sign documents, the employee must log-in and download the document from DATIS e3. I have access to view when employees have signed and credentialed documents from Human Resources.

8. On or about November 20, 2016, Plaintiff Felicia Alexander was promoted from her job title of Crisis Intervention Specialist to Unit Program Coordinator, which prompted the DATIS e3 program to alert Alexander to download, acknowledge, and credential an arbitration agreement with Five Acres. Employees log into their DATIS e3 accounts regularly to approve and view time cards. Alexander is the only one who can access her DATIS e3 account because no one else has record of her unique password that she created. On November 21, 2016, Alexander downloaded and electronically signed her arbitration agreement with Five Acres on DATIS e3 through her unique login (“Arbitration Agreement”). Plaintiff could have taken as much time as she needed to review the Arbitration Agreement and could have reached out to her supervisor or

Human Resources if she had any questions. Attached hereto as Exhibit 1 is a true and correct copy of Alexander’s electronically signed Arbitration Agreement with Five Acres.

The Court finds that Defendants have not met their burden of demonstrating that Plaintiff saw the arbitration agreement and agreed to it. For one, there is no explanation as to why the date of “4/5/21” appears at the top of the page, especially when the Complaint in this action was not filed until December 20, 2022. Nor is there an explanation why the statement: “Felicia Alexander acknowledged this at 1:27 PM (Pacific Standard Time) on 11.21.2016 (credentialed by her e3 login)” could only have been generated by an act of Plaintiff which was the equivalent of her electronic signature—evidencing not only that she had an opportunity to review it, but also expressly consented to its terms. Anyone could have typed this statement at any time: Defendants have not adequately explained otherwise.

The Court gave Defendants an opportunity to address this evidentiary deficiency, and continued the hearing on this motion for supplemental briefing in this regard. Plaintiff’s argument that this second bite at the apple is improper is not persuasive: as long as Plaintiff has an opportunity to respond to this second bite, there is no due process violation.

The Court addresses Plaintiff’s evidentiary objections to Defendant’s Supplemental Briefs thereto:

¿ Plaintiff’s Evidentiary Objection No. 1: Entire Gonalez Declaration - OVERRULED. Goes to weight.

¿ Plaintiff’s Evidentiary Objection No. 2: Gonzalez Decl., ¶ 4 – OVERRULED. The objections are inapplicable; this paragraph is laying her foundation for her declaration.

¿ Plaintiff’s Evidentiary Objection No. 3: Gonzalez Decl., ¶ 5 – OVERRULED. Not hearsay, lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271[1].)

¿ Plaintiff’s Evidentiary Objection No. 4: Gonzalez Decl., ¶ 6 – OVERRULED. Not hearsay, lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271.)

¿ Plaintiff’s Evidentiary Objection No. 5: Gonzalez Decl., ¶ 7 – OVERRULED. Not hearsay, lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271.)

¿ Plaintiff’s Evidentiary Objection No. 6: Gonzalez Decl., ¶ 8 – OVERRULED. Not hearsay, lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271.)

¿ Plaintiff’s Evidentiary Objection No. 7: Gonzalez Decl., ¶ 9 – OVERRULED. Not hearsay to the extent that it lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271.) Business records hearsay exception to the extent it is offered for the truth of the statement that Plaintiff signed/dated the agreement at 1:27 PM on 11.21.2016.

¿ Plaintiff’s Evidentiary Objection No. 8: Gonzalez Decl., ¶ 10 – OVERRULED. Not hearsay to the extent that it lays foundation for business records exception to rule against hearsay. (Evid. Code, § 1271.) Business records hearsay exception to the extent it is offered for the truth of the statement that Plaintiff acknowledged the agreement on November 21, 2016.

[T]he custodian of a document need not have been present or employed when the document was created or signed to authenticate a document in a company's files (see Estate of O'Connor (2017) 16 Cal.App.5th 159, 170 [224 Cal. Rptr. 3d 243] [any qualified witness knowledgeable about documents may lay foundation for business records]; Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 684 [195 Cal. Rptr. 3d 34] [“no strict requirement as to how a party authenticates a writing”], citing Evid. Code, § 1410), as plaintiffs implicitly acknowledged by not objecting to the exhibits.

(Iyere v. Wise Auto Grp. (2023) 87 Cal.App.5th 747, 758-59 [bold emphasis added].)

The personal knowledge of a witness regarding a matter may be shown by any otherwise admissible evidence, including the witness's own testimony. (Evid. Code § 702, subd. (b).) Here, Dougherty stated under penalty of perjury that she is employed by the Department as a corporations examiner in the enforcement division and that the facts contained in her declaration are true and correct based on her own personal knowledge or based on her review of records relating to this matter. She then stated that the Department sent certain correspondence to Media One regarding the SDT and subpoena and that true and correct copies of the correspondence were attached to her declaration.

The trial court was entitled to accept Dougherty's assertion of personal knowledge, and it does not strain credulity to presume a corporations examiner in the enforcement division was aware of the actions taken by the Department. Additionally, Dougherty's statement that she reviewed the files relating to this matter and that the documents attached were true and correct copies of correspondence sent by the Department to Media One sufficiently authenticated the documents. (Evid. Code, § 1400 [all that is required to authenticate a writing is that there be “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is”]; The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 34–35 [108 Cal. Rptr. 3d 606] [authentication adequate where counsel declared “he had personal knowledge that the documents attached to his declaration were the [City of Los Angeles's] verified interrogatory responses in this action, along with exhibits the City attached to its interrogatory responses”].) Moreover, there is nothing in the record on appeal to suggest that the documents attached to Dougherty's declaration were not true and correct copies of the correspondence sent by the Department to Media One. We conclude that the trial court acted within its discretion when it overruled Media One's objection to Dougherty's declaration based on lack of personal knowledge.

(People ex rel. Owen v. Media One Direct, LLC (2013) 213 Cal.App.4th 1480, 1484 [bold emphasis and underlining added].)

¿ Plaintiff’s Evidentiary Objection No. 9: Gonzalez Decl., ¶ 11 – OVERRULED. Goes to weight; see discussion above re: business records exception to hearsay rule.

¿ Plaintiff’s Evidentiary Objection No. 10: Gonzalez Decl., ¶ 12 – SUSTAINED. This is hearsay which is not qualified for the business records exception. There is insufficient foundation for/authentication of this document attached as Exhibit D, which could have been prepared for purposes of this supplemental brief outside the process of the business records exception.

¿ Plaintiff’s Evidentiary Objection No. 11: Gonzalez Decl., ¶ 13 – OVERRULED. Goes to weight; see discussion above re: business records exception to hearsay rule.

¿ Plaintiff’s Evidentiary Objection No. 12: Gonzalez Decl., ¶ 14 – OVERRULED. Lays foundation for business records exception.

¿ Plaintiff’s Evidentiary Objection No. 13: Gonzalez Decl., ¶ 15 – OVERRULED. Lays foundation for business records exception.

¿ Plaintiff’s Evidentiary Objection No. 14: Gonzalez Decl., ¶ 16 – OVERRULED. Goes to weight; sufficient foundation/personal knowledge.

¿ Plaintiff’s Evidentiary Objection No. 15: Gonzalez Decl., ¶ 17 – OVERRULED. Goes to weight; sufficient foundation/personal knowledge.

¿ Plaintiff’s Evidentiary Objection No. 16: Gonzalez Decl., ¶ 18 – OVERRULED. Goes to weight; sufficient foundation/personal knowledge.

¿ Plaintiff’s Evidentiary Objection No. 17: Gonzalez Decl., ¶ 19 – OVERRULED. Business records hearsay exception to the extent it is offered for the truth of the statement that Plaintiff consented to the agreement on November 21, 2016.

¿ Plaintiff’s Evidentiary Objection No. 18: Gonzalez Decl., ¶ 20 – OVERRULED. Goes to weight; sufficient authentication/foundation. This addresses the Court’s request for an explanation of the April 5, 2021 date.

¿ Plaintiff’s Evidentiary Objection No. 19: Yau Decl., ¶ 2 – OVERRULED. Not hearsay; laying foundation for personal knowledge as witness.

¿ Plaintiff’s Evidentiary Objection No. 20: Yau Decl., ¶ 3 – OVERRULED. Not hearsay; laying foundation for personal knowledge as witness.

¿ Plaintiff’s Evidentiary Objection No. 21: Yau Decl., ¶ 4 – OVERRULED. Not hearsay; goes to weight.

¿ Plaintiff’s Evidentiary Objection No. 22: Yau Decl., ¶ 5 – OVERRULED. Not hearsay; goes to weight; sufficient foundation/personal knowledge.

¿ Plaintiff’s Evidentiary Objection No. 23: Yau Decl., ¶ 6 – OVERRULED. Not hearsay; goes to weight; sufficient foundation/personal knowledge.

At this point, the Court agrees with Plaintiff that an evidentiary hearing is justified.

According to Rosenthal, facts relevant to enforcement of the arbitration agreement must be determined “ ‘in the manner … provided by law for the … hearing of motions.’ ” (Rosenthal, supra, 14 Cal.4th at p. 413, quoting § 1290.2.) This “ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court's discretion.” (Rosenthal, supra, at pp. 413–414; accord, Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [64 Cal. Rptr. 2d 843, 938 P.2d 903] [in resolving a petition 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”]; Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356–357 [72 Cal. Rptr. 2d 598] [same].) The Rosenthal court further observed that where “the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination.” (Rosenthal, supra, at p. 414.)

(Hotels Nev. v. L.A. Pac. Ctr., Inc. (2006) 144 Cal.App.4th 754, 761-62 [bold emphasis added].)

The Court notes that Defendant’s best course may be to present a live demonstration or an authenticated video recording of the custodian of records accessing the business records which reflect that Plaintiff logged into e3 around the time she purportedly electronically signed the arbitration agreement. (That is, a properly authenticated, real-time demonstration of how Gonzalez generated Exhibit D to her Supplemental Declaration, as to which the Court sustained Plaintiff’s evidentiary objection.) The Court would find such properly authenticated evidence probative of whether Plaintiff and only Plaintiff accessed and electronically agreed to the arbitration agreement.

Plaintiff would then have an opportunity to deny under oath that this happened, despite such evidence that she electronically accessed the arbitration agreement and agreed to it.

The Court sets an evidentiary hearing for November 8, 2023 at 8:30 a.m. regarding Plaintiff’s purported electronic signature on the agreement to arbitrate this dispute. Witnesses are to personally appear to testify.

[1]

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

(Evid. Code § 1271.)