Judge: Malcolm Mackey, Case: 22STCV06815, Date: 2022-08-03 Tentative Ruling

Case Number: 22STCV06815    Hearing Date: August 3, 2022    Dept: 55

BREWER v. UNIVERSAL PROTECTION SERVICE, L.P                  22STCV06815

Hearing Date:  8/3/22,  Dept. 55

#4:   MOTION TO COMPEL ARBITRATION AND STAY CASE.

 

Notice:  Okay

Opposition

 

MP:  Defendant

RP:  Plaintiff

 

 

Summary

 

On 2/24/22, Plaintiff SEAN BREWER filed a Complaint against UNIVERSAL PROTECTION SERVICE, L.P. alleging:  On August 20, 2021, the employer, despite having knowledge of Plaintiffs painful knee injury and doctor-ordered work restrictions, suspended Plaintiff without pay, and thereafter denied accommodations.   By December of 2021, the employer created working conditions so intolerable that a reasonable person in Plaintiff’s position had no reasonable alternative but to resign.

The causes of action are:

1. UNLAWFUL DISCRIMINATION BASED UPON DISABILITY IN VIOLATION OF CALIFORNIA GOVERNMENT CODE tt12940 (a);

2. FAILURE TO PREVENT DISCRIMINATION IN VIOLATION OF CAI IFORNIA GOVERNMENT CODE 1112940 (k);

3. FAILURE TO REASONABLY ACCOMMODATE IN VIOLATION OF CALIFORNIA GOVERNMENT CODE tt12940 (a);

4. FAILURE TO ENGAGE IN THE GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF CALIFORNIA GOVERNMENT CODE tt12940 (n);

5. RETALIATION FOR OPPOSING DISCRIMINATION AND HARASSMENT IN VIOLATION OF CALIFORNIA GOVERNMENT CODE 012940 (11);

6. RETALIATION IN VIOLATION OF CALIFORNIA GOVERNMENT CODE 1112940 (m)(2);

7. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY.

 

 

MP Positions

 

Moving party requests an order compelling arbitration, and staying this action, on grounds including the following:

 

·         Upon hire as a security professional, Plaintiff electronically signed an Arbitration Policy and Agreement with Defendant as employer. 

·         The Company is engaged in interstate commerce, as it provides security officer services to businesses nationwide, and so the FAA applies.

·         Under the FAA, courts’ involvement is limited to determining: (1) whether a valid agreement to arbitrate exists; and, if it does, (2) whether the agreement encompasses the dispute at issue. (Cox v. Ocean View Hotel Corp. (9th Cir. 2008) 533 F.3d 1114, 1119.)

·         The agreement is not unconscionable, incorporates the Employment Arbitration Rules of the American Arbitration Association.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiff denies ever reviewing, signing, or agreeing to be bound to any arbitration agreement.

·         Defendant failed to provide sufficient competent evidence to connect the purported "electronic signature page," to the alleged arbitration agreement.

           

 

Tentative Ruling

 

The motion is granted. 

Plaintiff and Defendant shall arbitrate the controversies between them, including the entire Complaint, in accordance with their agreement to arbitrate. 

This entire case is stayed until such arbitration has been completed.

The Court finds that moving party’s declaration of Peggy Grzywacz, as a Senior Regional Human Resources Director for Defendant, validly authenticated Plaintiff’s electronic signature of the subject arbitration agreement, based upon foundation for the business records exception.

"Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate .... '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.' ”  Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 843  ("she did not explain how she arrived at that conclusion or inferred ... the person who electronically signed the 2011 agreement.")).  See also  Espejo v. So. Cal. Permanente Med. Group (2016) 246 Cal.App.4th 1047, 1060 (“defendants … met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing … electronic signature. Once … challenged …, defendants were then required to establish by a preponderance of the evidence that the signature was authentic.”).

Courts have broad discretion in determining whether witnesses are qualified to testify concerning  “ ‘the identity and mode of preparation’ ” of business records, to permit a determination that ‘[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.’ ”  Sierra Managed Asset Plan, LLC v. Hale (2015) 240 Cal.App.4th Supp. 1, 9  (declaration and testimony that an assignee received business records falls short of necessary foundation).  Courts have wide discretion in determining whether proper foundation was laid for admission of records under business records exception.  Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798.  Foundational evidence in support of the business records exception to the hearsay rule need not be presented by the custodian of the record, or the employee who prepared it.  Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798.  To establish admissibility, based on the business records exception to the hearsay rule, a witness having personal knowledge of the transaction or event, need not testify, but instead any qualified witness familiar with the procedures followed, may testify.  Jazayeri v. Mao (2009) 174 Cal. App. 4th 301, 322.  “ ‘The witness need not have been present at every transaction to establish the business records exception; he or she need only be familiar with the procedures followed ….’ ”  Midland Funding LLC v. Romero (2016) 5 Cal.App.5th Supp. 1, 8.