Judge: Gail Killefer, Case: 24STCV02932, Date: 2024-09-26 Tentative Ruling

Case Number: 24STCV02932    Hearing Date: September 26, 2024    Dept: 37

HEARING DATE:                 Thursday, September 26, 2024

CASE NUMBER:                   24STCV02932

CASE NAME:                        Sanjay Kalra v. Apro, LLC, et al.

MOVING PARTY:                 Defendants Apro, LLC; CF United LLC; and Joseph Juliano

OPPOSING PARTY:             Plaintiff Sanjay Kalra

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Compel Arbitration

OPPOSITION:                        3 September 2024

REPLY:                                  9 September 2024

TENTATIVE:                         Defendants’ motion to compel arbitration is denied without prejudice.

Background

On February 5, 2024, Sanjay Kalra (“Plaintiff”) filed a Complaint against APRO, LLC; d/b/a Unified Pacific, CF United LLC; Joseph Juliana; and Does 1 to 10. The Complaint alleges the following twelve causes of action:

1)     Whistleblower Retaliation in Violation of Labor Code § 1102.5;

2)     Discrimination Based on National Origin/Ancestry/Race and Age [Gov. Code § 12940(a)];

3)     Harassment Based on National Origin/Ancestry/Race and Age – Hostile Work Environment [Cal. Gov. Code §§ 12923, 12940(j)];

4)     Retaliation in Violation of FEHA [Gov. Code § 12940(m)(2)];

5)     Failure to Prevent Discrimination, Harassment, and Retaliation [Gov. Code § 12940(k)];

6)     Wrongful Termination in Violation of Public Policy;

7)     Failure to Provide Meal and Rest Periods (Labor Code §§ 226.7, 512, 8 CCR § 11040);

8)     Nonpayment of Overtime (Violation of Labor Code §§ 510, 1194, 8 CCR § 11040);

9)     Record Keeping Violations (Labor Code §§ 226, 1174(d), 1174.5, 1175);

10) Nonpayment of Wages (Labor Code §§ 201, 203, 204, 207, 215, 218, 218.5, 218.6);

11) Unfair and Unlawful Business Practices (Bus. & Prof. Code § 17200, et seq.); and

12) Intentional Infliction of Emotional Distress

Defendants APRO, LLC, CF United LLC, and Joseph Juliano (hereinafter “Defendants”) move for an order to compel Plaintiff to arbitrate his claims. Plaintiff opposes the Motion. The matter is now before the court.

motion to compel arbitration

I.         Legal Standard

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes.¿ To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies.¿ Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal¿issues.”¿ (CCP, § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.)¿ Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.¿ (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)¿¿¿ 

¿¿ 

In deciding a motion or petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties and then determine whether the claims are covered within the scope of the agreement.¿(Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)¿ The opposing party has the burden to establish any defense to enforcement.¿ (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner ... bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].)¿ 

II.        Evidentiary Objections

Defendants’ Evidentiary Objections^[1]:

1)     The objections to the Declaration of Garren Hines are overruled as Mr. Hines states he has personal knowledge of Exhibits 1 and 2 because they were obtained from Defendants. (Hines Decl., ¶ 2.) Defendants also fail to show that Mr. Hines lacks personal knowledge about Plaintiff’s unfamiliarity with computers and/or that Plaintiff’s son was helpful in assisting Plaintiff in accessing his email, phone, or computer. (Id., ¶ 5.)

2)     The objections to the Declaration of Sahil Kalra are overruled as the court does not find that the statements are irrelevant. Moreover, “the very fact in controversy is whether certain things were said or done ... the words or acts are admissible not as hearsay [,] but as original evidence[.]” (People v. Smith (2009) 179 Cal.App.4th 986, 1003.) At issue here is whether Plaintiff accessed the computer and used his username and password to electronically sign the onboarding document on Defendant’s portal or if the electronic signature can be attributed to someone else. Therefore, Sahil can testify to what he observed.

3)     The objections to the Declaration of Sanjay Kalra are similarly overruled as the statements are not irrelevant, Sanjay has personal knowledge of the facts, and he can attest to what he observed.

Plaintiff’s Evidentiary Objections:

1)     Objection No. 1 is sustained as Judy Chu fails to cite facts to show she has personal knowledge that after January 16, 2019, Defendants sent instructions to Plaintiff on how to electronically sign and submit the onboarding documents and that Plaintiff did submit such documents after January 16, 2019.

2)     Objection No. 2 is sustained as Judy Chu only has personal knowledge that the arbitration agreement was electronically signed on January 16, 2019, by someone with Plaintiff’s unique username and password and not that it was Plaintiff who electronically signed the agreement.

3)     Objection No. 3 is overruled as the contents of the arbitration agreement are not in dispute.

4)     Objection No. 4 is overruled as Judy Chu states she reviewed the inbox and confirmed there was no opt-out agreement from Plaintiff and Plaintiff presents no evidence to refute this assertion.

5)     Objections Nos. 5 & 7 are sustained as Judy Chu has personal knowledge that the I-9 form and Clerk’s Affidavit were electronically signed but not that it was Plaintiff who signed it rather than another person who knew Plaintiff’s unique username and password.

6)     Objections Nos. 6 & 8 are irrelevant and not material to the adjudication of this Motion and the court declines to rule on the objection.

III.      Discussion

In a motion to compel arbitration, “[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, 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. No jury trial is available for a petition to compel arbitration.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [citations omitted].)¿ 

Defendants assert that Plaintiff was hired as a sales associate on or about January 16, 2019, and as part of the onboarding process Plaintiff electronically signed an arbitration agreement (the “Agreement”). (Chu Decl., ¶ 6, Ex. A; Raynor Amed. Decl., ¶¶ 7-8.) Plaintiff disputes this. (Sanjay Kalra Decl., ¶ 2.)

Plaintiff states that he is 68 years old and is disabled due to injuries in his shoulder and hands. (Sanjay Kalra Decl., ¶ 3.) Due to his disabilities, Plaintiff is not good with computers.  He is limited in his computer knowledge, use, and/or typing. (Id.) Plaintiff asserts that his son, Sahil Kalra (age 26), completed Plaintiff’s online application for the sales associate position on January 3, 2019. (Id., ¶ 4.) The job application was completed at their home using his son’s laptop with the information provided by Plaintiff. (Id.) Plaintiff asserts he did not personally enter a username and password when applying, but it was his son who entered the information on behalf of Plaintiff. (Id.)

Plaintiff’s son, Sahil, confirms that he helped his father complete the online job application using Defendants’ TalentReef online portal. (Sahil Kalra Decl., ¶ 3.) Sahil states he typed a username and typed a password created by his father. (Id., ¶ 4.) Sahil then reviewed the application with his father. (Id., ¶ 5.) Sahil states that on January 16, 2019, when the agreement and other onboarding documents were signed, he was living and attending college in San Diego and did not complete the onboarding documents on behalf of his father. (Id., ¶ 6.)

On January 16, 2019, when the onboarding documents were completed, Plaintiff physically went to Defendant’s store to be interviewed by Willie Green, the Defendants’ District Manager. (Sanjay Decl., ¶ 6.) At the interview, Plaintiff states Mr. Green told him he needed to complete some paperwork for the job on the store’s computer, but he explained to Mr. Green that due to his age, disability, and limited knowledge and use of computers, he did not use computers. (Id., ¶ 4.) Plaintiff asserts that throughout the interview, Mr. Green had his laptop out, asked Plaintiff questions, and entered the information on his laptop, including Plaintiff’s emergency contact information. (Id., ¶ 8.) At the end of the interview, Mr. Green told Plaintiff he was hired for the sales associate position. (Id.)

Plaintiff further asserts that at no time did Mr. Green discuss an arbitration agreement or ask Plaintiff to review any information on a computer, nor did Plaintiff verbally assent to an arbitration agreement or authorize Mr. Green to sign the Agreement on his behalf. (Sanjay Decl., ¶ 9.) Plaintiff states that he has reviewed the onboarding documents provided by Defendants and “can confirm I did not electronically sign these documents.” (Id., ¶ 10.) Plaintiff asserts it is his belief that Mr. Green himself completed all of Plaintiff’s onboarding documents, including electronic signature. (Id.) Plaintiff asserts that on January 16, 2019, he “did not use a computer, or other device, on January 16, 2019, to access and complete the onboarding documents.” (Id., ¶ 11.) Plaintiff asserts he “did not enter a username or password to access the onboarding documents” and that “[i]f a username and password was needed to complete the onboarding documents, I believe I provided them to Mr. Green to enter.” (Id.)

The Amended Declaration of Ian Raynor details Defendants’ use of the job application portal, TalentReef, and its security procedures that require job candidates to create a unique username and password to complete the application. (Amend. Raynor Decl., ¶¶ 4-8.) Mr. Raynor states that no one can access a candidate’s TalentReef portal without the candidate’s username and password and that the candidate’s username and password are required to sign documents electronically. (Id., ¶¶ 8, 9, 13.) Raynor asserts the Agreement was part of the paperwork only provided to new hires. (Id.)

Neither Mr. Raynor’s Declaration nor the Declaration of Judy Chu, dispute Plaintiff’s declaration that Mr. Green completed the onboarding documents and electronically signed the documents using Plaintiff’s unique username and password, which Plaintiff provided, and that Mr. Green never informed Plaintiff of the Agreement or that agreeing to the Agreement was a condition of employment. Defendants fail to show that Mr. Green could not have completed the onboarding documents on behalf of Plaintiff. Defendants also do not offer the Declaration of Mr. Green to refute Plaintiff’s assertion that he did not electronically sign the Agreement.

As outlined in Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, Defendants bear the burden of showing that the electronic signature is the act of Plaintiff and not Mr. Green. Civil Code § 1633.9 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.

(b) The effect of an electronic record or electronic signature attributed to a person under subdivision (a) is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement, if any, and otherwise as provided by law.

(Civ. Code, § 1633.9.)

Because Plaintiff declares that he did not sign the onboarding documents or use a computer, and it is his belief that he provided the username and password to Mr. Green, Defendants have failed to carry the burden of showing that the electronic signature on the Agreement is attributable only to Plaintiff. Therefore, Defendants fail to show that Plaintiff electronically signed the Agreement.

Defendants also fail to show Mr. Green explained the Agreement to Plaintiff and that Plaintiff consented or knew about the Agreement's existence. Defendants argue that Plaintiff’s continued employment constituted consent to the Agreement, but this requires that Plaintiff have knowledge of the Agreement’s existence and that consent to the Agreement was a job requirement. A signed arbitration agreement is not necessary when “a party's acceptance may be implied in fact [citation] or be effectuated by delegated consent [citation].” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

Here, Defendants present no evidence to rebut Plaintiff’s assertion that he was not presented with the Agreement.  Accordingly, Plaintiff could not have impliedly consented to an agreement he did not know existed. (See Sanjay Kalra Decl., ¶ 11 [“I did not enter a username or password to access the onboarding documents.”].) Nor do Defendants argue or present evidence that Plaintiff delegated the signing of the Agreement to Mr. Green. Absent a showing that Plaintiff knew about the Agreement, there are no facts to support the finding that Plaintiff impliedly consented to arbitration by continuing to work for Defendants.

Defendants’ motion is denied.

Conclusion

Defendants’ motion to compel arbitration is denied without prejudice.