Judge Marcella O. Mclaughlin, Case 37-2023-00036801-CU-OE-CTL 2024-03-29 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00036801-CU-OE-CTL, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 28, 2024

03/29/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Other employment Motion Hearing (Civil) 37-2023-00036801-CU-OE-CTL ROMERO VS CHEDRAUI USA INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/30/2023

The motion to compel arbitration is DENIED.

A. The court rules on plaintiff's evidentiary objections to the Garcia declaration (ROA 23) follows: -Objection 4 is sustained.

-The remaining objections are overruled.

B. The court rules on plaintiff's evidentiary objections to the Garcia supplemental declaration (ROA 28) follows: -Objection 7 is sustained.

-Objection 6 is sustained as to the second and third sentences.

-The remaining objections are overruled.

C. Defendant has failed to carry its burden of demonstrating the existence of an arbitration agreement between the parties by a preponderance of the evidence.

The party seeking to compel arbitration bears the burden of proving the existence of the arbitration agreement by a preponderance of the evidence. Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1157. However, the burden of production may shift in a three-step process. Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.

First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy. Id. 'For this step, 'it is not necessary to follow the normal procedures of document authentication.'' Id. (quoting Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218). If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion. Id. If, however, the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. Id. To bear this burden, the arbitration opponent must offer admissible evidence creating a factual dispute as to the authenticity of their signatures. Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755.

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. Gamboa, 72 Calendar No.: Event ID: TENTATIVE RULINGS

3059751 10 CASE NUMBER: CASE TITLE: ROMERO VS CHEDRAUI USA INC [E-FILE] 37-2023-00036801-CU-OE-CTL Cal.App.5th at 165. The moving party may carry its burden 'in any manner,' including by presenting evidence of the contents of the contract in question and the circumstances surrounding the contract's execution. Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1068. In this third step, the moving party may submit reply evidence establishing the agreement's validity. See Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 794 (court properly admitted moving party's evidence submitted on reply because nonmoving party placed the arbitration agreement's validity at issue in his opposition papers).

D. In support of the motion, defendant submitted a copy of an arbitration agreement purportedly bearing the electronic signatures of the parties, in which they agreed that 'binding arbitration shall be the exclusive remedy for all claims between them.' (Garcia Decl., Ex. A.) This is prima facie evidence of an arbitration agreement. The burden therefore shifts to plaintiff, who states in her declaration that she has 'no recollection of ever receiving or signing the arbitration agreement[.]' (Romero Decl., ¶ 6.) Such evidence is sufficient to shift the burden back to defendant to prove the authenticity of plaintiff's electronic signature. See Gamboa, 72 Cal.App.5th at 165.

To authenticate an electronic signature on an arbitration agreement, the moving party must show that the electronic signature 'was the act of the person' opposing the petition to compel arbitration. Civ.

Code § 1633.9(a). The moving party may make this showing 'by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions.' Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545.

Here, Maria Garcia, defendant's Vice President of Human Resources, states that she is 'familiar with Chedraui's application and onboarding process' which occurs via a third-party platform called 'talentReef.' (Garcia Reply Decl., ¶ 2.) She further states that applicants for employment with Chedraui must create a unique username and password for talentReef in order to complete the onboarding process. (Id. at ¶ 3.) However, nowhere in Garcia's declaration does she make any attempt to explain how plaintiff's electronic signature came to be placed on the agreement. See Bannister, 64 Cal.App.5th at 545. Specifically, is unclear whether an employee must enter his or her username and password to log into talentReef and affix an electronic signature to documents, or if the username and password is only needed to log into the platform. It is also unclear whether only plaintiff could have signed the arbitration agreement because only plaintiff had access to her unique username and password. No information has been provided regarding how defendant handles its employees' personal data or their talentReef login information. Accordingly, in the absence of such evidence, the court finds that defendant has failed to show that the electronic signature on the arbitration agreement was 'the act of' plaintiff.

E. Having resolved the motion on the foregoing grounds, the court declines to address the other contentions of the parties. See Dobbs v. Jackson Women's Health Organization (2022) 597 U.S. 215, 348 (Roberts, C.J., concurring) ('If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.'). Defendant has 15 days to plead to the complaint. Code Civ. Proc. § 1281.7.

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