Judge: Jon R. Takasugi, Case: 24STCV21621, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCV21621    Hearing Date: January 21, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s motion to compel arbitration is GRANTED. This action is stayed pending the completion of arbitration.

            On 8/26/2024, Plaintiff Christina Mary Balian (Plaintiff) filed suit against Macy’s Inc., Macy’s Retail Holdings, LLC, Macy’s West Stores, LLC dba Macy’s, Macy’s Northridge Fashion Center, and Armis Ananian (collectively, Defendants), alleging: (1) employment discrimination; (2) unlawful harassment; (3) failure to engage in timely, good faith interactive process; (4) failure to provide reasonable accommodation; (5) retaliation; (6) failure to take all reasonable steps necessary to prevent discrimination; (7) wrongful termination; and (8) intentional infliction of emotional distress.

            On 12/18/2024, Defendants moved to compel Plaintiff to arbitrate her Complaint.

Legal Standard

“Where the Court has determined that an agreement to arbitrate a controversy exists, the Court shall order the petitioner and the respondent to arbitrate the controversy …unless it determines that…  grounds exist for rescission of the agreement.” (Code Civ. Proc., § 1281.2.) Among the grounds which can support rescission are fraud, duress, and unconscionability. (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239.) The Court may also decline to compel arbitration wherein there is possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2 (c).)

Discussion

1.      Defendants’ Burden

The party moving to compel arbitration “bears the burden of proving [the] existence [of an arbitration agreement] by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The moving party also bears the burden of demonstrating that the claims fall within the scope of the arbitration agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)

A.    Existing Agreement

Defendant submitted evidence that Plaintiff signed a New Hire Acknowledgement form which included an arbitration provision. (See Sherrick Decl. Ex. G; Ripak Decl. Exs. B-C.)

In opposition, Plaintiff contend that Defendants have failed to meet their burden to show that Ms. Balian affirmatively agreed to the terms, as the arbitration requirement lacks any signature.

However, a review of the documents clearly shows electronic assent. Plaintiff further argues that the electronic signature forms fail to make any express reference to the Acknowledgement Form containing the arbitration provision, and thus Defendants cannot present any proof that Plaintiff signed the Acknowledgement Form.

However, Defendants submitted extensive evidence to show that:

(1)  Plaintiff was required to complete and electronically sign certain Online Forms before she could begin working. The Online Forms could only be completed at designated Macy’s computers within Macy’s locations. The Online Forms included, among others, a Direct Deposit form, a Form W-4, a Travel Accident Insurance Beneficiary Designation form, and a Solutions InSTORE New Hire Acknowledgement form. (Sherrick Decl., Exh. A.)

(2)  To access the online forms, the new employee must enter unique personal information – her Social Security Number, month and day of birth, and zip code – in the appropriate fields on the Online Forms Login screen and then click “submit.” (Sherrick Decl., Exh. B.)

(3)  After the employee enters the above information and clicks “submit,” the employee sees the Online Forms Main Menu screen. This screen lists the online forms that the employee is required to complete to begin employment. Included among those forms is the Solutions InSTORE New Hire Acknowledgement. (Sherrick Decl., Exh. C.)

(4)  Once the employee clicks the “Fill in Form” link next to Solutions InSTORE, the next screen the employee will see is the Solutions InSTORE New Hire Acknowledgement. (Sherrick Decl., Exhs. A,C.)

(5)  By clicking on the “I Certify” link at the bottom of the New Hire Acknowledgement form (Ex. A), the employee certifies that she has received a copy of the Solutions InSTORE brochure and Plan Document and that the employee understands she has 30 days from the date of hire to review the Solutions InSTORE information and postmark a completed Election Form to the Office of Solutions InSTORE if the employee does not wish to agree to Step 4 – Arbitration. The employee also certifies her understanding that information about the Solutions InSTORE Program, including a copy of the Plan Document, is available from: (1) www.employeeconnection.net, Benefits tab, Solutions InSTORE; (2) Human Resources; and (3) the Office of Solutions InSTORE. (Sherrick Decl., Exhibits A, G.)

(6)  Once the employee clicks the “I Certify” link at the bottom of the page, a dialogue box appears requesting that the employee electronically sign the Solutions InSTORE New Hire Acknowledgement. To electronically sign the form, the employee must enter her Social Security Number, month and day of birth, and zip code in the appropriate fields and then click the “Continue” link in the electronic signature dialogue box. (Sherrick Decl., Exh. D.)

(7)  Each electronic signature submitted during the Online Forms completion process is validated separately. First, the information entered in the fields of the electronic signature dialogue box is validated against the user’s session values (i.e., the information entered to Login) to ensure that the Social Security Numbers match. If the Social Security Numbers do not match, the user is prompted to re-enter her personal information. After five invalid attempts, the account is locked, and the session is terminated. If the Social Security Numbers match, the database is then queried to ensure that the zip code also matches. If they match, the application saves these fields along with all the other form fields to a database record in an XML format through an encrypted and secured internal data feed.

(8)  Once the application saves the electronic signature, a dialogue box appears stating: “Your changes have been saved successfully.” This means that the employee’s electronic signature data was successfully saved to the database. A true and correct copy of an exemplar of the dialogue box acknowledging that the electronic signature was saved is attached as Exhibit E. In addition, the status of the Solutions InSTORE New Hire Acknowledgement on the Online Forms Menu is updated to “Complete.” (Sherrick Decl., Exh. F.)

(9)  After the application saves the electronic signature to a database record, no one employed by the company can change the signature. Additionally, only a select few Online Form Administrators have access to the electronic signature database. Individual electronic signatures are accessed only when that information becomes relevant to handling an employee’s claim.

Moreover, Mr. Sherrick stated in declaration that he located Plaintiff’s electronic signature to the Solutions InSTORE New Hire Acknowledgement Form in the electronic signature database. (See Sherrick Decl., ¶ 13.)

Taken together, the Court finds that the preponderance of evidence supports a finding that Plaintiff electronically signed the New Hire Acknowledgement Form which contained an arbitration provision. This is especially true given that the completion of these forms was a necessary prerequisite to her employment, and because Plaintiff does not indicate that she was provided some of the pre-employment documents and not others. Rather, she categorically denies receiving the Employment Brochure, the Election Form, nor the Plan Document, all of which did not relate exclusively to arbitration.

Finally, Plaintiff argues that Defendants have failed to demonstrate that she did not opt out of the arbitration agreement. However, Defendants submitted evidence that no evidence of opting-out was located in her file. Moreover, in opposition, Plaintiff does not contend that she ever opted out. Indeed, it would be contradictory for Plaintiff to argue that she never received the arbitration agreement, only to then argue that she also opted out of the provision.

Given that Defendant has established by a preponderance of the evidence that an arbitration agreement exists, and that Plaintiff’s claims are covered by that agreement, the burden shifts to the Plaintiff to establish that the arbitration clause should not be enforced. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236. (Pinnacle).)

2.      Plaintiff’s Burden

The party opposing arbitration bears the burden of proving, by a preponderance of the evidence any defense, such as unconscionability or duress. (Pinnacle, supra, 55 Cal.4th at p. 236.)

Plaintiff did not advance any argument of unconscionability. Accordingly, Plaintiff has not met her burden to show that the agreement should not be enforced.

Based on the foregoing, Defendant’s motion to compel arbitration is granted. This action is stayed pending the completion of arbitration.

It is so ordered.

Dated:  January    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.