Judge: Malcolm Mackey, Case: 22STCV36074, Date: 2023-08-10 Tentative Ruling

Case Number: 22STCV36074    Hearing Date: August 10, 2023    Dept: 55

LOPEZ v. SAJAHTERA INC.,                                                        22STCV36074

Hearing Date:  8/10/23,  Dept. 55.

#8:   MOTION TO COMPEL ARBITRATION.

 

Notice:  Okay

Opposition

 

MP:  Defendant

RP:  Plaintiff

 

 

Summary

 

On 11/15/22, Plaintiff RICK LOPEZ filed a Complaint against THE BEVERLY HILLS HOTEL alleging that Plaintiff’s national origin and/or gender were a substantial motivating reason for the employer Defendant’s adverse decisions including employment termination.

The causes of action are:

1. DISCRIMINATION;

2. WRONGFUL TERMINATION/ADVERSE TREATMENT IN VIOLATION OF LABOR CODE § 1102.5;

3. INTERFERENCE WITH PROTECTED AND PAID LEAVE IN VIOLATION OF THE EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT;

4. WRONGFUL TERMINATION/ADVERSE ACTIONS IN VIOLATION OF PUBLIC POLICY;

5. BREACH OF CONTRACT;

6. BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;

7. RECOVERY OF WAGES;

8. FAILURE TO PAY STATUTORILY MANDATED OVERTIME WAGES;

9. FAILURE TO PROVIDE ADEQUATE MEAL AND REST PERIODS;

10. FAILURE TO PAY ACCRUED VACATION;

11. FAILURE TO MAINTAIN RECORDS AND PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS;

12. WAITING TIME PENALTIES.

 

 

MP Positions

 

Moving party requests an order compelling Plaintiff to arbitrate, on grounds including the following:

 

·         On July 22, 2020, Plaintiff electronically executed a written agreement to submit all employment-related disputes to binding arbitration.

·         Unless an employee chooses to opt out, he must submit his employment disputes to arbitration.  (Campos Dec., ¶ 8, 17; Exhibit B, p. 96.

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiff declared he does not recall signing an arbitration agreement, which places a burden on moving party to show Plaintiff’s signature competently, by a preponderance of evidence. 

·         The Claudia Campos declaration submitted by the Hotel fails to competently authenticate Plaintiff’s purported electronic signature.

·         Plaintiff waives the arbitration process as expressly provided in the 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.

 

            Assent

The Court finds that Plaintiff assented to arbitration.

Moving party’s declaration suffices to competently show Plaintiff’s electronically sign arbitration agreement, including based upon sufficient foundation of business records, without the necessity of seeing Plaintiff actually sign.  Additionally, the Court has compared the signature on Plaintiff’s declaration with the similar signatures on the employer records, and finds that they are the same signatures.  Further, Plaintiff’s evidence only weakly infers not signing, based on a declaration of not remembering signing without denying signing, and employer productions of employment records without any arbitration agreement.

“Evidence Code section 1417, states, ‘The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.’ ”  People v. Rodriguez (2005) 133 Cal. App. 4th 545, 552.  Comparisons of signatures or other handwriting need not be made by a witness or an expert, but instead the trial judge or other trier of fact may make the comparison.  Devereaux v. Frazier Mountain Park & Fisheries Co. (1967) 248 Cal.App.2d 323, 330.  An agreement’s signature can be shown by having a judge compare a genuine signature to that on an agreement, or by a declaration of a custodian of records.    Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 170 (proponent of arbitration failed to file any such authenticating proof, including because agreement’s signature and declaration signature had some dissimilarities).  "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.").  Accord  Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1068, 1070  (“offered little more than a bare statement that Fabian ‘entered into’ the Contract without offering any facts to support that assertion.”);  Espejo v. S. California Permanente Med. Grp. (2016) 246 Cal. App. 4th 1047, 1062  (factual details to properly authenticated electronic signature, such as using security, passwords, time and IP address);  J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 989  (insufficient proof to show party printed name at the end of e-mail with any intent to formalize electronic transaction).

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 .  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.  Ibid.  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.

“[I]f substantial evidence supports the trial court's determination that a valid agreement to arbitrate exists, an appellate court will affirm that determination.”    Banner Ent., Inc. v. Sup. Ct. (1998) 62 Cal.App.4th 348, 357.  Accord  Zavala v. Scott Bros. Dairy, Inc. (2006) 143 Cal.App.4th 585, 589-90.

 

            Waiver/Opting Out

 

The Court finds that Plaintiff did not follow express opt-out provisions required by the arbitration agreement, and also did not unilaterally waive arbitration contractually, since the agreement expressly requires opting out, and the agreement of both parties to waive specified resolution steps  (opp., p. 5).  It provides:  “The Beverly Hills Hotel offers a procedure to assure that problems and complaints are resolved in a transparent and consistent manner – this is called the Dispute Resolution Process (DRA). By agreement between me, and The Beverly Hills Hotel, any one of the five steps of the DRA may be waived, and they may be taken out of order  (moving party’s Notice of Lodgment, exhs. B and E).

“‘The burden is on the party opposing arbitration to show the agreement cannot be interpreted to apply to the dispute.’”  Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772 (quoting Balandran v. Labor Ready, Inc. (2004) 124 Cal.App.4th 1522, 1527-1528).

Appellate courts would reverse trial courts’ arbitration-waiver findings where the record establishes a lack of waiver as a matter of law.   Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 453.

 

            Stay

Where a court has ordered arbitration, it shall stay the pending action, until an arbitration is had in accordance with the order to arbitrate, or another earlier time, and the stay may be with respect to an issue that is severable.  CCP §1281.4;  Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 320;  Twentieth Century Fox Film Corp. v. Sup. Ct. (2000) 79 Cal.App.4th 188, 192;  Heritage Provider Network, Inc. v. Sup. Ct.  (2008) 158 Cal.App.4th 1146, 1152, 1154 n. 12.