Judge: Joseph Lipner, Case: 23STCV28000, Date: 2024-04-04 Tentative Ruling

Case Number: 23STCV28000    Hearing Date: April 4, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Casuda Canyon Restaurant Corporation (“Defendant”) moves the Court for an order compelling Plaintiff David Romero (“Plaintiff”) to arbitrate his claims against Defendant and dismissing or staying this action.

The Court DENIES Defendant’s motion.

Background

          This is an employment case. Plaintiff worked for Defendant as a general manager of the Luminarias Restaurant beginning in June 2023 and ending when Defendant terminated him on August 11, 2023.

          Plaintiff filed this action on November 15, 2023. The complaint raises claims for (1) retaliation in violation of FEHA; (2) failure to prevent retaliation; (3) retaliation in violation of Labor Code, section 1102.5; (4) wrongful termination; (5) failure to pay minimum wages; (6) failure to pay overtime wages; (7) failure to provide meal periods; (8) failure to authorize or permit rest periods; (9) failure to timely pay wages; and (10) failure to provide adequate pay stubs.

          Defendant moved to compel arbitration on March 8, 2024. Plaintiff filed an opposition and Defendant filed a reply.

Evidentiary Objections

The Court sustains Plaintiff’s first, second, and third objections to the Declaration of Ashley N. Pham. Pham does not establish foundation or personal knowledge for her statements that the documents were signed by Plaintiff.

The Court overrules the remaining objections.

Legal Standard

“[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. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

Discussion

The Arbitration Provisions

Defendant submits two documents pertaining to arbitration. The first is a “Notice of Voluntary Dispute Resolution Agreement” (the “Notice”). (Insichienmay Decl., Exh. A.) The second is a “Voluntary Dispute Resolution Agreement” (the “Agreement”). (Insichienmay Decl., Exh. B.)

The Notice does not purport to be an agreement to submit disputes to arbitration. The bottom of the notice contains a signature line. Above the signature line is a box labeled “Electronically Signed By.” Inside of the box is typed the beginning of Plaintiff’s name (specifically, “David Anthony Rom…” [ellipse in original]).

The Agreement states that the parties agree to use binding arbitration to resolve all disputes that arise out of or are related to employment with Defendant.

The bottom of the Agreement contains a signature line where the beginning of Plaintiff’s name, “David Anthony Rom…” [ellipse in original] is typed. Unlike in the Notice, there is no box or label indicating that it is an electronic signature.

Mutual Assent

“In California, general principles of contract law determine whether the parties have entered a binding agreement to arbitrate, and the party seeking arbitration bears the burden of proving the existence of an arbitration agreement.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 [internal citations and quotation marks omitted; cleaned up.)

“Still, any writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence.” (Ibid.) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.)

“[T]he burden of authenticating an electronic signature is not great.” (Ruiz, supra, 232 Cal.App.4th at p. 844.) However, “[i]n the face of [a plaintiff’s] failure to recall signing the 2011 agreement, [a defendant has] the burden of proving by a preponderance of the evidence that the electronic signature was authentic[.]” (Id. at p. 846.)

Chantira Insichienmay declares that Defendant uses a software called UKG UltiPro Solutions (“UKG”) to provide a portal for the submission of employment applications and the distribution of forms and policies to applicants and employees. (Insichienmay Decl. ¶ 5.) Employees’ logins are password-protected, and Defendant cannot obtain the passwords, nor can a different user edit a form submitted by a user. (Insichienmay Decl. ¶ 6.)

Insichienmay declares that Plaintiff’s UKG file contains a Notice and an Agreement, each of which was electronically signed by Plaintiff on May 23, 2023. (Insichienmay Decl. ¶ 11.) Insichienmay’s declaration provides the primary evidence in support of Defendant’s motion, and Insichienmay is the only witness who has personal knowledge relating to whether Plaintiff signed the Agreement.

Plaintiff denies that he signed the agreement. Plaintiff avers in his declaration that any new hire paperwork he completed would have been completed in one sitting, on May 23, 2023. (Romero Decl. ¶ 2.) Plaintiff states that he does not recall signing any new hire paperwork after that date. (Romero Decl. ¶ 2.) Thus, Defendant must prove the authenticity of Plaintiff’s purported signature at the bottom of the Agreement.

Defendant’s own evidence raises doubts that Plaintiff signed the Agreement.

Insichienmay’s declaration states that that when the Notice is signed, the user receives an indication stating, “I acknowledge that I received a copy of the Voluntary Dispute Resolution Agreement” at the end with a yellow box indicating “Sign Here.” (Insichienmay Decl. ¶ 7.) The user is prompted to select the yellow box indicating “Sign Here” and, after selecting that yellow box, the user’s first and last name will be populated in the signature line. (Insichienmay Decl. ¶ 7.) The same thing happens when a user signs that Agreement - the user receives an indication stating, “I acknowledge that I received a copy of the Voluntary Dispute Resolution Agreement” at the end with a yellow box indicating “Sign Here.” (Insichienmay Decl. ¶ 8.) The user is prompted to select the yellow box indicating “Sign Here” and, after selecting that yellow box, the user’s first and last name will be populated in the signature line. (Insichienmay Decl. ¶ 8.)

In other words, the dialog that an employee clicks through that results in their electronic signature appearing on the Agreement does not state with any clarity that they are agreeing to the Agreement. Rather, it seems to represent to the employee that their signature is an acknowledgment of receipt, much like with the Notice. The declaration supports that the employee is led to believe something different than the statement on the face of the Agreement stating that the employee’s signature on the Agreement makes the Agreement binding.

The Court finds that Defendant has not met its burden of proving the existence of an arbitration agreement.