Judge Jill Feeney, Case Number: 23STCV05466, Date: 2023-12-22 Tentative Ruling

This is an action for elder abuse, negligence, and violation of Health and Safety Code, section 1430(b). Plaintiff alleges that she was a resident of Defendants’ skilled nursing facility around March 2022 after receiving surgery to treat rectal cancer. (Compl., ¶¶15-16.) Despite Plaintiff’s care plan, Defendants failed to change her dressings, which caused Plaintiff to undergo additional surgery. (Compl., ¶¶20-22.)

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, California 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.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 [citations omitted]; Code Civ. Proc. § 1281.2.)

In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking arbitration has the “burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.) The trial court “sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Id.) General principles of contract law govern whether parties have entered a binding agreement to arbitrate. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see also Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.)

Whether there is a written agreement to arbitrate is a matter of contract, and courts must enforce arbitration contracts according to their terms. (Banc of California, National Association v. Superior Court of Los Angeles County (2021) 69 Cal.App.5th 357, 366.) A party cannot be required to submit to arbitrate any dispute to which he has not agreed to arbitrate. (Id.)

A contract is not formed without mutual assent. (Civ. Code, §§ 1550, 1565.) However, “[t]he existence of mutual assent is determined by objective criteria, not by one party’s subjective intent. The test is whether a reasonable person would, from the conduct of the parties, conclude that there was a mutual agreement.” (Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1050)

Here, Defendants allege that Plaintiff agreed to arbitrate when she signed an arbitration agreement when she was admitted to Defendants’ facility. (Motion, Exh. A.) On the signature lines at the bottom of the agreement, two lines of text state the document was “E-SIGNED by Crisia Matis on 2022-04-04 15:56:27.” (Id.)

“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).) “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.” (Id., subd. (b).)

Here, Defendants do not address the issue of whether the electronic signature is attributable to Plaintiff in their moving papers. Additionally, Defendants provided only their counsel’s declaration in support of the motion. Plaintiff’s objections to this declaration are sustained.

Defendants’ Director of Admissions Training and Support, Amita Tisbe, testifies that when a patient or resident is admitted or readmitted to the facility, the resident is given an optional arbitration agreement. (Tisbe Decl., ¶4.) After a resident arrives at the facility, an admissions office employee meets the resident and explains the admission process and the documents to be signed. (Id., ¶5.) The employee asks the resident which documents the resident wants to sign and whether they want to use the electronic format. (Id.) If the resident picks the electronic format, the staff member generates the documents in a program called Point, Click Care. (Id., ¶¶6-7.) The staff member then gives the resident or the resident’s representative a tablet where they complete the documents. (Id., ¶7.) To sign the documents, the resident either creates an e-signature by signing in their own handwriting on the tablet or by entering block letters and other information, including a date and time, on the signature line. (Id., ¶8.)

Although Tisbe’s declaration explains the facility’s customs and procedures with respect to incoming patients, none of the information contained in the declaration describes the context and circumstances surrounding the creation of Plaintiff’s electronic signature specifically. The declaration is not made by an employee who dealt with Plaintiff on the day that the agreement was allegedly signed.

There is no information provided showing that the signature on the Agreement was an act of Plaintiff. Although the act may be demonstrated in any manner, such as through a description of the security procedures applied to ensure the identity of the person signing, Tisbe’s declaration merely states that residents typically handwrite their signatures or type in their signatures with a date and time. There is no information about whether the electronic signature was an act of Plaintiff or how Plaintiff’s identity was verified.

Plaintiff cites Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1069 in support of her argument that the signature was not authenticated. In Fabian, a court found that a signature was not authenticated because the defendant failed to provide any evidence about the e-signature software used to sign the documents or the process used to verify the plaintiff’s electronic signature. The defendant failed to provide information such as how the plaintiff affixed her signature to the contract, how the contract was returned, and how the plaintiff’s identity was verified as the person who actually signed the agreement.

The facts here are much like those in Fabian because Defendants here merely provide evidence of the facility’s customs for completing documents when a patient is admitted. There is no information about how Plaintiff specifically received, signed, and returned the Agreement and how her identity was verified as the person who actually signed the Agreement. Therefore, Defendants fail to show that the electronic signature was authenticated.