SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES 

 

DEPARTMENT 71 

 

TENTATIVE RULING 

 

 

Defendants Prosegur Services Group, Inc.’s and Manual Rojas’ motion to compel Plaintiff Georgina DeLaRosa’s claims in her Complaint to arbitration is denied. 

 

Defendants Prosegur Services Group, Inc. (“Prosegur”) and Manuel Rojas (“Rojas”) (collectively, “Defendants”) move to compel Plaintiff Georgina DeLaRosa (“DeLaRosa”) (“Plaintiff”) to arbitrate the claims alleged in her complaint (“Complaint”) and to dismiss this action in its entirety, or in the alternative, stay any further proceedings.  (Notice Compel Arbitration, pg. 2; C.C.P. §§1281 et seq., 1281.4.) 

 

Evidentiary Objections 

Plaintiff’s 1/30/24 evidentiary objections to the Declaration of Campbell (“Campbell”) are overruled as to Nos. 1 and 2. 

 

Background 

On February 28, 2023, Plaintiff filed her operative Complaint in the instant action against Defendants alleging seven causes of action: (1) discrimination on the basis of race, ancestry, and/or national origin in violation of FEHA; (2) harassment on the basis of race, ancestry, and/or national origin in violation of FEHA; (3) retaliation for complaining of discrimination and/or harassment on the basis of race, ancestry, and/or national origin in violation of FEHA; (4) violation of Labor Code §1102.5; (5) wrongful termination of employment in violation of public policy (discussing wages) in violation of Labor Code §1102.5 and FEHA; (6) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; and (7) intentional infliction of emotional distress.  Plaintiff’s causes of action stem from Plaintiff’s employment with Prosegur, which began in September 2021 as a full-time Customer Service Assistant at Ontario International Airport.  (Complaint ¶10.) 

The United States Supreme Court has specifically held that the FAA applies to employment contracts: “[A]s a matter of law the answer is clear.  In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms.”  (Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612, 1619, [holding that employees must submit to arbitration agreements including those with collective action waivers].)   

The FAA restricts a court’s inquiry related to compelling arbitration to two threshold questions: (1) whether there was an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute.  (Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84.)  Here, both criteria are satisfied. First, Plaintiff agreed to arbitration when she entered into the Arbitration Agreement (“Agreement”) that contained the relevant arbitration clause.  (Decl. of Campbell ¶5, Exh. 1.)  Second, the Agreement expressly covers “any controversy, dispute, or claim” between Plaintiff and Prosegur.  (Decl. of Campbell ¶5, Exh. 1 at ¶2.)   

California law also favors arbitration for dispute resolution. The California Arbitration Act (“CAA”), codified at C.C.P. §1281 et seq., provides, “A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”  (C.C.P. §1281; see also Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 955 [“[U]nlike predispute jury waivers, predispute arbitration agreements are specifically authorized by statute.”].)   

“California law, like federal law, favors enforcement of valid arbitration agreements.”  (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97, 99.)  The public policy in favor of arbitration is so strong that California courts have held that an employee is “bound by the provisions of the [arbitration] agreement regardless of whether [he] read it or [was] aware of the arbitration clause when [he] signed the document.”  (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, citing Macaulay v. Norlander (1992) 12 Cal.App.4th 1.)  The only prerequisite for a court to order arbitration is a determination that the parties have entered into an agreement to arbitrate the dispute.  (United Transportation Union v. Southern California Rapid Transit District (1992) 7 Cal.App.4th 804, 808.)  Thus, arbitration must be ordered “unless the agreement clearly does not apply to the dispute in question.” (Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189.) 

Defendants proved the existence of an arbitration agreement with Plaintiff.  Defendants submitted evidence that on September 14, 2021, Plaintiff signed the Agreement.  (See Decl. of Campbell ¶5, Exh. 1.)  Pursuant to C.C.P. §1281.2, Parties do not dispute that Defendants made a formal demand for arbitration on September 25, 2023, to which Plaintiff responded by stating she did not agree to stipulate to proceed to arbitration.  (Decl. of Unayan ¶4, Exh. 2.)   

Plaintiff’s argument that Defendants waived their right to arbitrate is unavailing.  Defendants have not engaged in any conduct which would support the argument that they have waived their right to arbitration by acting inconsistently with such right.  (See Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 660-661 [finding no waiver of right to arbitration where discovery was limited in which plaintiff demanded documents and sent form interrogatories to defendant, and defendant propounded one set of requests for production of documents and one set of special interrogatories on plaintiff]; Hall v. Nomura Securities International (1990) 219 Cal.App.3d 43, 51 [instituting discovery by noticing other party’s deposition was not sufficient to waive right to seek arbitration]; see also Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1196 [no prejudice when party seeking to avoid a waiver had propounded discovery requests].)  ¿Participating in litigation of an arbitrable claim does not by itself waive the right to later seek arbitration; however, at some point, continued litigation may be deemed a waiver.  (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1201 [filing of lawsuit insufficient to constitute waiver].) 

Here, Defendants engaged in initial discovery and made a responsive pleading.  After locating the Agreement at issue within their files, they made the instant motion seven months after Plaintiff filed her Complaint.  Defendants’ motion, filed seven months after the filing of the complaint, does not constitute “continued litigation” or an action inconsistent with its earlier actions.  (See Saint Agnes Medical Center, 31 Cal.4th at pg. 1169.) 

However, Plaintiff’s arguments regarding the validity of the arbitration agreement are well taken.  Defendants fail to produce evidence in support of the proposition that Plaintiff signed the agreement.  Ruiz v. Moss Bros. Auto Group, Inc. explicitly states that there can be no agreement to arbitrate where the party compelling arbitration cannot authenticate the signature.  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.)  “[A]ny writing must be authenticated before the writing or secondary evidence of its content may be received in evidence.”  (Id. at pg. 843, citing Evid. Code §1401; People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.)  “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; Valdez, 201 Cal.App.4th at pg. 1435.) 

In Ruiz, while the defendants’ declaration provided that Ruiz electronically signed the arbitration agreement, the declaration did not explain how defendants ascertained that the electronic signature on the agreement was the act of Ruiz. (Ruiz, 232 Cal.App.4th at pg. 843.)  Ruiz had alleged that he did not recall signing the agreement, and, while the declarant stated that the agreement was “part of an employee acknowledgment form that ‘is’ presented to all Moss Bros. employees as part of a series of changes to the company’s employee handbook, and each employee is required to log into the company’s HR system, using his or her ‘unique ID and password’ to review and sign the employee acknowledgement form,” the Ruiz Court held that the declarant had not “explain[ed] how, or upon what basis, [the declarant] inferred that the electronic signature on the [arbitration agreement] was ‘the act of’ Ruiz, . . . [which] left a critical gap in the evidence supporting the petition.” (Id. at pg. 844)   

The Ruiz Court ruled that the declarant’s “unsupported assertion that Ruiz was the person who electronically signed the [arbitration agreement]” was “insufficient to supporting a finding that the electronic signature was, in fact, ‘the act of’ Ruiz’” and that “the evidence was insufficient to supporting a finding that the electronic signature was what Moss Bros. claimed it was: the electronic signature of Ruiz.”  (Id.) 

Here, Defendants provide, “Plaintiff signed a Mutual Dispute Resolution Agreement (“Agreement”) with the Defendant. (See Exhibit 1, attached).”  (Decl. of Campbell ¶5.)  Under Ruiz, this evidence alone is not sufficient to infer that the electronic signature was the act of Plaintiff.  Defendants cannot authenticate the signature, and therefore, they cannot meet their evidentiary burden to support a finding that the signature is that of Plaintiff.  Further, Defendants provide no information about the regular procedures its company uses to authenticate its employees’ signatures on arbitration agreements. 

Based on the foregoing, Defendants failed to prove the existence of a valid Agreement that is enforceable by Defendants. Therefore, Defendants’ motion is denied. 

 

Conclusion 

Defendants’ motion to compel arbitration is denied. 

Moving Party to give notice. 

 

 

Dated:  February _____, 2024