Judge: Deborah C. Servino, Case: 30-2023-01316537, Date: 2023-08-11 Tentative Ruling

Defendant Santa Monica Seafood Company’s motion to compel arbitration is granted.

Evidentiary Objections

Plaintiff Brian Coleman's objections to the declaration of Mark Kimball are overruled.

Defendant’s objections to the declaration of Brian Coleman are sustained as to nos. 1, 6, 11, and overruled as to nos. 2-5, 7-10, 12-13.  Defendant's objections to the declaration of Sima Farde is sustained as to no. 2, and overruled as to nos. 1 and 3.

Defendant filed a reply declaration of Mark Kimball in support of its reply.  “The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ’ and if permitted, the other party should be given the opportunity to respond.”  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)  Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition.  (Id. at p. 1538.)  Here, Defendant’s reply evidence responds to an issue raised in the opposition.  The court exercises its discretion to consider the reply evidence.  Plaintiff may address the reply evidence during argument at the hearing.  Plaintiff's motion to strike the reply declaration is denied.  Plaintiff's evidentiary objection to the reply declaration is overruled. 

The Federal Arbitration Act ("FAA")

Defendant contends that the FAA applies.  (Mot., at pp. 8-9.) The FAA provides that a “written provision in any . . . 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 . . . 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 ‘principal purpose’ of the FAA is to ‘ensur[e] that private arbitration agreements are enforced according to their terms.’” (Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257 [citing AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 344].)

Here, the arbitration agreement expressly states that it “is governed by the Federal Arbitration Act (the "FAA"), including the substantive and procedural provisions of the FAA."  (Kimball Decl., Exh. A, at p. 1.)  In any event, California and federal arbitration law are identical for the purposes of this motion.  Preliminarily, both the Federal Arbitration Act (“FAA”) and the California Arbitration Act (“CAA”) require the existence of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. § 2; Code Civ. Proc., § 1281.2.)

“In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement arbitrate.” (Theresa D. v. MBK Senior Living, LLC (2021) 73 Cal.App.5th 18, 24.)  Indeed, even where the FAA applies, “[i]n determining the rights of parties to enforce an arbitration agreement . . . courts apply state contract law. . . .” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

The analysis of the issue of unconscionability remains a matter of California state law.  (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1142-1143.)

Legal Principles

Code of Civil Procedure section 1281.2 provides, inter alia:

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 rescission of the agreement.

(c)  A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . .

California Rules of Court, rule 3.1330 requires that a petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure section 1281.2 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be attached to the petition and incorporated by reference

“‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.  Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.’”  (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

Plaintiff's Electronic Signature

Under Civil Code section 1633.7, an electronic signature has the same legal effect as a handwritten signature.  “Still, any writing must be authenticated” before it may be received in evidence.  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.)  “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 statue 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.)”  (Id. at p. 843.) 

Here, Defendant met its initial burden of a valid arbitration agreement by submitting the declaration of Mark Kimball and supporting exhibits.  Kimball’s declaration detailed Taleo’s security precautions regarding transmission and use of the employee’s username and unique password, as well as the steps an employee would have to take to view forms and electronically sign the new hire paperwork.  (Kimball Decl., at ¶¶ 6-10; see Exhs. A-F; Kimball Reply Decl., at ¶¶ 5-7.)   Among the new hire paperwork electronically signed by Plaintiff was the mutual arbitration agreement.  (Kimball Decl., at ¶ 6; Exh. A.)  A copy of Plaintiff’s Taleo candidate log, corroborates that he electronically signed the mutual arbitration agreement.  Based on this procedure, Kimball concluded that Plaintiff used his unique login ID and password to review the mutual arbitration agreement, and then made an electronic signature.  (Kimball Reply Decl., at ¶¶ 5-7; Exhs. A-F.)  These details satisfactorily meet the requirements articulated in Ruiz v. Moss Bros. Auto Group, Inc., supra, 232 Cal.App.4th at p. 843.)  They establish that authenticating with the password for each signature, was “the act of” Plaintiff, and properly authenticated Exhibit A.  (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062.) 

The burden then shifts to Plaintiff to prove the falsity of the purported agreement.  (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.)  In opposition to the motion, Plaintiff submitted a declaration.  He acknowledged signing the offer letter on or about June 16, 2018.  (Coleman Decl., at ¶ 3.)  This signature was corroborated in the evidence submitted by Defendant.  (Kimball Decl., at Exhs. B & C.)  However, he did not recognize the documents that he signed as ones he electronically signed on June 29, 2018.  (Coleman Decl., at second ¶ 4.)  Without any foundation, he asserts that because the entries on the log only showed updates, rather than showing that he had electronically signed any documents, he did not electronically sign any documents.  (Coleman Decl., at second ¶ 5.)  He did not recall ever electronically signing 17 separate entries or documents.  (Coleman Decl., at ¶ 7.)  Plaintiff has not proven the falsity that he electronically signed the mutual arbitration agreement, the act showing that he agreed to arbitration.

Plaintiff contends that there was no mutual assent to arbitration because the employee handbook also has an arbitration provision, that has material terms different from the mutual agreement arbitration. (Opp., at 10-13.)  This argument is not persuasive. 

Accordingly, the motion to compel arbitration is granted. Plaintiff is ordered to arbitrate all of his claims. The action is stayed pending final resolution of the arbitration.  (Code Civ. Proc., § 1281.4.)

The case management conference scheduled for September 8, 2023 is ordered vacated.  The court sets an arbitration status conference for February 23, 2024 at 9 am in Department C21.

Defendant shall give notice of the ruling and of the February 23, 2024 arbitration status conference.