Judge: Cynthia A Freeland, Case: 37-2023-00011884-CU-WT-NC, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2023-00011884-CU-WT-NC SEEGER VS OLLI SALUMERIA AMERICANA LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/01/2023

Defendant Olli Salumeria Americana, LLC ('Defendant')'s motion to compel arbitration and stay proceedings is granted.

Plaintiff Marilyn Seeger ('Plaintiff')'s objections to Ms. Torres' declaration are overruled.

Defendant is a food manufacturer and distributor. See Torres Decl., ¶ 4. Plaintiff was employed as a Department Supervisor with Defendant from December 7, 2021 to July 15, 2022. Ibid., ¶¶ 2-3. On December 7, 2021, as part of the onboarding process, Plaintiff electronically signed an Arbitration Memorandum (the 'Memorandum') which purportedly attached a separate Arbitration Agreement. Ibid., Ex. B. In relevant part, the Memorandum outlines the arbitration process, including the cost of arbitration and the types of claims permissible through the arbitration process. Toward that end, the Memorandum states that: By agreeing to arbitration, you can pursue all individual claims under California, federal, or otherwise applicable laws that you could assert in court. However, you will be barred from participating in or pursuing any class or representative actions related to your employment with the Company, except for those representative actions brought pursuant to the Private Attorneys General Act of 2004 ('PAGA').

You will still pursue workers' compensation claims and unemployment insurance benefits in the same manner (i.e., there are no changes to that process).

See Memorandum, p. 2. The Memorandum goes on to state that Plaintiff has acknowledged receiving, reading, and understanding the Memorandum regarding the arbitration process and agreement, and was given an opportunity to ask questions about the process and agreement. Below that, the Memorandum states in bold: I understand that my continued employment with the Company constitutes acceptance of the terms of this memorandum and the Arbitration Agreement. I further understand that my employment will be governed by this memorandum and the Arbitration Agreement, regardless of whether I have signed this memorandum or the Arbitration Agreement. As such, I understand that the following shall apply to my employment: - Arbitration is the exclusive method and remedy of resolving all employment-related disputes and claims relating to, arising out of or in connection with my employment with the Company, the termination of such employment, or any of the terms, conditions, or benefits of my employment, except for those PAGA claims, workers' compensation claims, and claims for unemployment insurance benefits not Calendar No.: Event ID:  TENTATIVE RULINGS

2980893 CASE NUMBER: CASE TITLE:  SEEGER VS OLLI SALUMERIA AMERICANA LLC [IMAGED]  37-2023-00011884-CU-WT-NC covered by the Arbitration Agreement.

- Both the Company and I expressly waive the right to pursue all employment-related disputes and claims in any other forum, except for those brought pursuant to PAGA.

- I will be required to arbitrate any claims that arose from the date that my employment began.

- The arbitrator will have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of the Arbitration Agreement.

- Arbitration is binding and final.

- I expressly waive any right to a jury trial of any dispute(s) covered by the Arbitration Agreement.

- I am barred from pursuing or participating in any class or representative actions arising out of my employment with the Company, except for those brought pursuant to PAGA.

Ibid.

Plaintiff claims in a document entitled 'Declaration of Marilyn Seeger' that she did not receive a copy of the Arbitration Agreement or sign such a document on December 7, 2021 given that a copy of the Arbitration Agreement was not attached to the Memorandum. Plaintiff's 'declaration,' however, is inadmissible as it does not comport with the prescriptions of California Code of Civil Procedure § 2015.5 and, therefore, is evidence of nothing. Moreover, even if the court could consider the 'declaration,' regardless of Plaintiff's claim, both the Memorandum and the Arbitration Agreement contain a delegation clause. The delegation clause in the Memorandum states that '[t]he arbitrator will have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of the Arbitration Agreement.' Likewise, § 2.6 of the Arbitration Agreement provides that '[t]he arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable.' See Arbitration Agreement, § 2.6. The Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) (the 'FAA')'s substantive and procedural rules. Ibid., § 6.

In relevant part, the FAA provides that: 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, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2. The court applies state contract law in determining Defendant's right to enforce the Arbitration Agreement. See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal. 4th 223, 236 ('In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.'); Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal. App. 4th 1276, 1285 (generally applicable contract defenses may invalidate arbitration agreements provided they do not contravene § 2 of the FAA). A threshold determination in that regard is the existence of an arbitration agreement. See Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal. App. 4th 165, 172. Defendant bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. Plaintiff then bears the burden of proving by a preponderance of the evidence any facts necessary to her defense. See Lane v. Francis Capital Management LLC (2014) 224 Cal. App. 4th 676, 683.

The court finds that Defendant has satisfied its initial burden of proving the existence of an arbitration agreement. Defendant has provided a copy of the Arbitration Agreement that Plaintiff electronically signed. Nothing further is required to prove the Arbitration Agreement's existence. See Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219 ('For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication . . .

the court is only required to make a finding of the agreement's existence, not an evidentiary Calendar No.: Event ID:  TENTATIVE RULINGS

2980893 CASE NUMBER: CASE TITLE:  SEEGER VS OLLI SALUMERIA AMERICANA LLC [IMAGED]  37-2023-00011884-CU-WT-NC determination of its validity.'); Cal. R. Ct. 3.1330.

The burden thus shifts to Plaintiff to prove by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Agreement. Toward that end, Plaintiff contends that the Arbitration Agreement is not valid and/or not enforceable because Defendant has failed to properly authenticate Plaintiff's electronic signature on that document. The court respectfully disagrees. As set forth in Condee, Defendant only needed to attach a copy of the Arbitration Agreement with the parties' respective electronic signatures to satisfy its initial burden. Plaintiff thus needs to identify a factual dispute as to the Arbitration Agreement's existence by, for example, disputing the authenticity of the signatures. 'To meet this burden, the arbitration opponent must offer admissible evidence creating a factual dispute as to the authenticity of their signatures. 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 who retains the ultimate burden of proving, by a preponderance of the evidence, the authenticity of the signature.' Iyere v. Wise Auto Group (2023) 87 Cal. App. 5th 747, 755 (citing Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1060).

In this case, even if the court could find that Plaintiff, by way of her non-Code compliant declaration, created a factual dispute as to the authenticity of her signature, Defendant has established, by a preponderance of the evidence, the authenticity of Plaintiff's signature on the Arbitration Agreement. The Fourth District Court of Appeal has stated: Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq.; Stats. 1999, ch. 428, § 1, pp. 2809-2816), an electronic signature has the same legal effect as a handwritten signature (Civ. Code § 1633.7, subd. (a) ['A ... signature may not be denied legal effect or enforceability solely because it is in electronic form.']). Still, any writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence (Evid. Code, § 1401; People v. Valdez (2011) 201 Cal.App.4th 1429, 1435, [135 Cal.Rptr.3d 628]; People v. Goldsmith (2014) 59 Cal.4th 258, 271, [172 Cal.Rptr.3d 637, 326 P.3d 239].) 'Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.' (Evid. Code, § 1400, italics added; People v. Valdez, supra, at p. 1435, 135 Cal.Rptr.3d 628 [proponent meets its burden of producing evidence to show authenticity of writing ' 'when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.' ']' People v. Skiles (2011) 51 Cal.4th 1178, 1187, [126 Cal.Rptr.3d 456, 253 P.3d 546] ['[w]riting an be authenticated by circumstantial evidence and by its contents.'].) Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal. App. 4th 836, 843. California Civil Code § 1633.9(a) provides that '[a]n electronic record or 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.' Cal. Civ. Code § 1633.9(a).

In this case, Defendant has submitted a declaration and supplemental declaration from its Human Resources Director, Claudia Torres, who avers that she, in her role at Defendant, among other things, is familiar with Defendant's policies and practices as well as the personnel files and documents signed by Defendant's employees. See Torres Decl., ¶ 1. As part of Plaintiff's onboarding, she was sent documents via DocuSign to her e-mail address which requires her to create a unique identification and password so that only Plaintiff can review and sign the documents. Ibid., ¶ 2. HR received notification when Plaintiff electronically signed the onboarding documents, including the Memorandum. Ibid., ¶ 2. In 2022, Defendant transitioned to using the Human Resources information system Paycor. See Torres Supp. Decl., ¶ 2. In her role at Defendant, Ms. Torres was instrumental in procuring the Paycor system, setting up the systems and workflows to allow employees to electronically sign documents, and transitioning the prior HR system to Paycor, and has received training on how Paycor works. Ibid. Ms.

Torres has administrator-level access to Paycor that allows her to view other employees' activities. Ibid., Calendar No.: Event ID:  TENTATIVE RULINGS

2980893 CASE NUMBER: CASE TITLE:  SEEGER VS OLLI SALUMERIA AMERICANA LLC [IMAGED]  37-2023-00011884-CU-WT-NC ¶ 3. Toward that end, when Defendant invites employees to register for Paycor, they do so through a unique company e-mail address on file. Ibid. Plaintiff's Paycor account was set up through her company e-mail address, marilyn@olli.com. Ibid., ¶ 3, Ex. C. No other employees can access Plaintiff's Paycor account. Ibid., ¶ 3. On July 5, 2022, Ms. Torres instructed an HR employee to electronically send Plaintiff a blank Arbitration Agreement. Ibid., ¶ 4. Plaintiff submitted her signed agreement on July 7, 2022 at 4:22 p.m. EDT, and Ms. Torres countersigned the agreement on July 11, 2022 at 8:20 p.m. EDT. Ibid., ¶ 4, Ex. D. Based on Ms. Torres' review of Plaintiff's Paycor file and her familiarity with Paycor and Defendant's maintenance of personnel records, Ms. Torres represents that the Arbitration Agreement bearing Plaintiff's electronic signature could only be attributable to her. Ibid., ¶ 5. Accordingly, the court finds that Defendant has properly authenticated Plaintiff's electronic signature and consequently has met its burden of proving the existence of an arbitration agreement between the parties.

The burden thus shifts to Plaintiff to prove by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Agreement. As set forth above, both the Arbitration Agreement and the Memorandum contain substantially similar delegation provisions. Toward that end, California courts allow parties to arbitrate 'gateway' questions or 'arbitrability' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. See Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-69; Mendoza v. Trans Valley Transport (2022) 75 Cal. App. 5th 748, 772. When the parties 'clearly and unmistakably' demonstrate their intent to have an arbitrator decide arbitrability, the issues must be submitted to the arbitrator unless the agreement to delegate arbitrability is itself unconscionable. See Rent-A-Center, West, Inc., 561 U.S. at 70; Trinity v. Life Ins. Co. of North America (2022) 78 Cal. App. 5th 1111, 1122; Brennan v. Opus Bank, 796 F.3d 1125, 1132 (9th Cir. 2015). In this case, the parties have agreed in both the Arbitration Agreement and the Memorandum that the arbitrator shall have the exclusive authority to resolve any dispute concerning the arbitration agreement's interpretation, applicability, enforceability, and/or formation. This language has been held sufficient to delegate the issue of arbitrability to an arbitrator. See Aanderud v. Sup. Ct. (2017) 13 Cal. App. 5th 880, 892; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal. App. 4th 771, 787.

Plaintiff spends the remainder of her opposition arguing that the Memorandum is not enforceable for various reasons, including that there was not a meeting of the minds and the arbitration provisions are procedurally and substantively unconscionable. However, such arguments attack the Memorandum as a whole and not the delegation clause contained within it. The only discernible argument Plaintiff advances for why the delegation provisions contained within the Arbitration Agreement and Memorandum should not be enforced is that there was fraud in the execution of the contracts. Such argument is unavailing.

Under the fraud in the execution or inception doctrine, 'the fraud goes to the inception or execution of the agreement, so that the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all, mutual assent is lacking, and [the contract] is void. In such a case it may be disregarded without the necessity of rescission.' Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 415. In this case, the only 'evidence' Plaintiff has submitted to support a finding of fraud in the execution is her inadmissible declaration in which she avers that she was never provided with or signed the Arbitration Agreement, and that the first time she saw the agreement was when Defendant filed the present motion. See Seeger Decl., ¶ 6. The foregoing is insufficient for the court to void the delegation provision under the fraud in the execution doctrine.

Based on the foregoing, the court finds that the delegation clause in the Arbitration Agreement and Memorandum is valid and will be enforced. This, then, requires any challenges to the validity of the Arbitration Agreement and/or the Memorandum as a whole, including their enforceability, to be decided by the arbitrator. As a result, the court grants Defendant's motion to compel arbitration and leaves for the arbitrator to decide the remaining issues set forth in Plaintiff's opposition. Given that the arbitrator has been vested with the authority to determine arbitrability, the court finds that a stay of this litigation will provide the most efficient method to address the issues in this court should the arbitrator conclude that the Arbitration Agreement or Memorandum is unenforceable and/or the issues are not arbitrable.

Additionally, a stay will enable the court to confirm efficiently any future arbitration award should the arbitrator conclude that the Arbitration Agreement and Memorandum are enforceable and the issues are Calendar No.: Event ID:  TENTATIVE RULINGS

2980893 CASE NUMBER: CASE TITLE:  SEEGER VS OLLI SALUMERIA AMERICANA LLC [IMAGED]  37-2023-00011884-CU-WT-NC arbitrable.

In light of the foregoing, the court grants Defendant's motion to compel arbitration. This litigation is stayed pending the outcome of the arbitration hearing or unless/until the arbitrator finds that the Arbitration Agreement and/or Memorandum are not enforceable. See 9 U.S.C. § 3. The court sets a status conference in this matter for February 23, 2024 at 9:30 a.m. in this department.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 20, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 20, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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