Judge Holly J. Fujie, Case Number: 23STCV09115, Date: 2023-10-27 Tentative Ruling

Richard Hernandez (“Plaintiff”) filed a complaint (the “Complaint”) which alleges 15 causes of action arising from an employment relationship with American Guard Services, Inc (“Defendant”). On September 8, 2023, Defendant filed a motion to compel arbitration (the “Motion”) on the grounds that when Plaintiff began working for Defendant, he signed agreements that contained provisions requiring him to adjudicate his current claims in binding arbitration. Opposition and reply papers to the Motion followed, and after the Court considered all papers, it found that the evidence regarding whether Plaintiff had signed the Arbitration Agreement (“Agreement”) was in dispute. (See October 4, 2023 Minute Order for Case No. 23STCV09155.) Thereafter, the Court requested supplemental papers from the parties. The Court discusses and rules on those papers below.

Plaintiff submits objections to the Supplemental Declaration of Natalie Solano in Support of Defendant’s Motion to Compel Arbitration. Those objections are overruled.

Here, the main inquiry is whether Plaintiff signed the Agreement. The Agreement in question contains a digital signature that shows both the name and signature as “Richard Frank Hernandez” and is time stamped as “Jul 23, 20221 3:09 PM PST”. (Motion, Exh. D, pg. 4.) However, Plaintiff argues through their Opposition Papers that he does not recognize the document, that he did not sign the document, nor did he authorize anyone to sign on his behalf. (Declaration of Richard Hernandez in Support of Plaintiff’s Opposition to Motion to Compel Arbitration and Stay Proceedings, ¶¶ 4-5.)

California Civil Code section 1633.9(a) supplies a governing rule and articulates how a proponent of an electronic signature may authenticate the signature and show that it is what the proponent claims it is. “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.”

In Plaintiff’s Supplemental Brief and Evidence in Opposition to Defendant’s Motion (“Plaintiff’s Supplemental Brief”), Plaintiff argues that Defendant has failed to meet its burden that, by the preponderance of evidence, it is more likely that not that Plaintiff signed the Agreement. The Court disagrees and will grant the Motion.

Plaintiff’s main contention in their Supplemental Brief is that the declarations of Rafaela Ramirez (“Ramirez”) and Natalie Solano (“Solano”) are unreliable. For example, Plaintiff argues that in Defendant’s Reply Papers, the Declaration of Rafaela Ramirez states that “Rafaela Ramirez, former HR Manager and Director, attests that she oversaw Plaintiff’s onboarding process.” (Plaintiff’s Supplemental Brief, 2:15-16.) Plaintiff then argues that the supplemental declaration submitted by Ramirez declares that she does not “recall Mr. Hernandez’s hire and onboarding specifically.” (Plaintiff’s Supplemental Brief, 2:18.) Plaintiff then turns to Solano’s declarations, arguing that, at in her first declaration, Solano attested that she did not handle Hernandez’s onboarding, but then in her supplemental declaration, she remembered Mr. Hernandez coming into the office for his onboarding. (Plaintiff’s Supplemental Brief, 3:3-11.)

As to the Ramirez declarations, nothing in the Declaration of Rafaela Ramirez upon reply states that she oversaw Plaintiff’s onboarding process specifically, however, Ramirez did work as the HR Manager and Director upon Plaintiff’s hiring, and therefore likely oversaw the hiring and onboarding process generally. As to the Solano declarations, the first Solano declaration filed with the initial Motion states that it was Ramirez’s job duties to oversee specific new hires’ onboarding. Solano’s supplemental declaration stating that she “remembers Mr. Hernandez coming into the office for his onboarding, personally interviewing Hernandez and offering him the position, and Mr. Hernandez being placed at a computer in front of her desk and watching him work through the onboarding documents” (Plaintiff’s Supplemental Brief, 3:8-11) does not contradict her initial declaration.

Plaintiff’s Signature Has Been Properly Authenticated Pursuant to CIV 1633.9

However, even if the declarations do not contradict each other, Defendant still must meet its burden of establishing that Plaintiff’s signature is in fact his own. Two Court of Appeal cases are instructive in this endeavor: (1) Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4^th 836 and (2) Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4^th 1047.

In Ruiz, an employee filed a class action against his employer, the employer filed a motion to compel arbitration. The trial court denied the motion and the Court of Appeal affirmed the denial based on insufficient evidence of the electronic signature. (Ruiz, supra at 836.) The Ruiz Court reasoned that because the employer’s initial declaration only summarily asserted the signature belonged to Ruiz but did not explain how they arrived at that conclusion, that there was simply not enough evidence. (Id. at 843-844.) Espejo was a case where a former employee brought an action against their employer for wrongful termination. The employer filed a motion to compel arbitration. The trial court denied the motion, but the Court of Appeal reversed, citing and discussing Ruiz at length, explaining that what the defendant in Ruiz lacked, the defendant in Espejo demonstrated sufficiently, a process by which it could show the electronic signature belonged to the signer. (Espejo, supra at 1062.)

The defendant in Espejo explained the security precautions regarding transmission and use of an applicant’s unique username and password, as well as the steps necessary for an applicant to place their name on the signature line of the employment agreement. The Defendant was then able to conclude based on this process, that the signature belonged to the plaintiff in Espejo. (Id.)

As the court in Espejo had before it, so this Court has here. In the initial Declaration of Natalie Solano submitted with the moving papers, Solano goes into great detail about how the Agreement at issue was signed.

On the first day, the new hire is directed to a computer station by a human resources employee where the new hire must create an account. (Declaration of Natalie Solano in Support of Defendant’s Motion to Compel Arbitration, “Solano Dec. Moving”, ¶ 6.) Then the new hire must enter their personal mobile phone number and email address. (Id.) After this is entered the system automatically sends the new hire a temporary password to their personal email address. (Id. at ¶ 7.) After this, the new hire is directed to a separate website where they must enter the temporary password provided to their personal email address. (Id at ¶ 8.) Solano notes that only someone with access to the new hire’s personal email address would be able to access the temporary password. (Id.) After the temporary credentials are entered into the separate website, the new hire must create new credentials. (Id. at ¶ 9.) Once the new hire creates their permanent credentials they are then directed to a new page where they are presented and must electronically acknowledge Defendant’s written policies, including the Agreement. (Id. at ¶¶ 10 and 13.) The system utilized by Defendant records these acknowledgements, and Solano confirmed with Defendant’s technology staff that there is no way for anyone at Defendant’s worksite to alter these records electronically. (Id. at ¶ 11.) Moreover, Solano attests that she has tested this process herself, and can confirm the process works as described. (Id. at ¶ 13.)

This is sufficient to meet the standard described in Ruiz, and Plaintiff’s supplemental brief is silent as to any deficiencies within Defendant’s process.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court