Judge: Michael Shultz, Case: 22CMCV00534, Date: 2023-04-27 Tentative Ruling
Case Number: 22CMCV00534 Hearing Date: April 27, 2023 Dept: A
22CMCV00534
Denetrius Harris v. Tap Worldwide, LLC, et al.
Thursday, April 27, 2023,
8:30 a.m.
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint alleges that
Defendants jointly employed Plaintiff in various capacities and also employed
co-Defendant, Oscar Pacheco, as Plaintiff’s supervisor. Plaintiff alleges that Defendants
engaged in acts of discrimination and harassment based on race, color, and
ancestry and retaliated against Plaintiff when he complained about the unlawful
practices. Plaintiff alleges eight causes of action for employment-related
claims in violation of the Fair Employment & Housing Act (“FEHA”) and for
failure to provide meal and rest breaks in violation of the Labor Code.
II.
ARGUMENTS
Defendants collectively ask for an
order compelling Plaintiff to submit his claims to binding arbitration. Plaintiff
signed an agreement to arbitrate any dispute when he completed the “onboarding”
online process when he was hired. Plaintiff refuses to submit his claims to
binding arbitration.
Plaintiff contends that he never
received or signed the arbitration agreement. Defendants have not authenticated
the agreement and it is unconscionable and unenforceable in any event.
Plaintiff’s Labor Code claims are not arbitrable as they seek injunctive
relief.
In reply, Defendants contend the
opposition is untimely and should be deemed an admission of Defendants’
contentions. Defendants argue that the arbitration agreement is authentic and
enforceable because a handwritten signature is not required. Defendants’
agreement to arbitrate has been recently validated by the Second District Court
of Appeal.
III.
LEGAL STANDARDS
The court can order a matter to
arbitration if it determines that an agreement to arbitrate the controversy
exists unless the right to compel has been waived or grounds exist for the
revocation of the agreement. (Code
Civ. Proc., § 1281.2.) The petitioning party’s burden is to
establish that a valid arbitration agreement exists by a preponderance of
evidence while responding party’s burden is to establish a defense to
enforcement. (Molecular
Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186
Cal.App.4th 696, 705.)
IV.
DISCUSSION
A.
The Court considers Plaintiff’s late-filed
opposition over Defendants’ objection.
Plaintiff filed his opposition on April 14,
2023, although it was due on April 17, 2023 (nine court days before the
hearing). (Code
Civ. Proc., § 1005 (Deering).) Absent any showing of
prejudice resulting from the late filing, the court has discretion to consider
late papers. (Mink
v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.) Defendants
have not shown any prejudice resulting from the late opposition as Defendants
were able to file a timely reply brief which the Court has considered.
B. Defendants’
authentication of the arbitration agreement is not required.
Defendants’ burden is to show the existence of an agreement, not its
validity. (Espejo v.
Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058 ["as a preliminary matter the
[trial] court is only required to make a finding of the agreement's existence,
not an evidentiary determination of its validity.”]). To meet its burden, the
moving party need only attach a copy of the agreement to the petition and
incorporate it by reference. (Id. at 1058; Cal. Rules of Court, rule 3.1330 [“The provisions must be stated
verbatim or a copy must be physically or electronically attached to the
petition and incorporated by reference."]). Defendants submit the
arbitration agreement at issue. (Donlon Decl., Ex. A.)
C. Defendants’ evidence is insufficient to demonstrate
Plaintiff’s agreement to arbitrate.
General
contract principles apply to agreements created on the internet. (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 862 [“mutual manifestation of assent,
whether by written or spoken word or by conduct, is the touchstone of
contract.”]) Consent to the agreement may be inferred from the person’s conduct
on the website using an objective standard. (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 460).
Defendants
have established that new hires must complete an onboarding process, create a
user identification, and electronically acknowledge Defendants’ policies,
acceptance of the employee handbook, and agreement to arbitrate. (Donlen Decl.;
Krezinski Decl.) Plaintiff, however, contends he completed the onboarding
process “in person.” (Turner Decl. ¶ 8.) While Defendants have established what
would have occurred during the online onboarding process, the electronic
records provided refer to “Alex Trinidad” not Plaintiff. (Krezinski Decl., .pdf
p. 19). Defendants contend that Plaintiff would have had to click on a box
acknowledging the ADR policy, but the evidence provided does not establish Plaintiff
acknowledged it, rather “John Skaggs” acknowledged it. (Id., .pdf p. 117.)
Additionally,
Ms. Donlon’s declaration is misleading in that it avers certain emails were
sent to Plaintiff containing his newly assigned Associate ID and that “the
system” recorded Plaintiff’s agreement to the ADR policy. (Donlon Decl. ¶¶
22-27.) There is no evidence of any “system recording.” Ms. Donlon’s evidence
consists of a screen capture showing green checkmarks under the column marked “acknowledged”.
(Id. Ex. B.) There is no evidence to attribute it to Plaintiff. (Bannister v. Marinidence Opco,
LLC (2021) 64 Cal.App.5th 541, 545).
Defendants’
reply brief attempts to establish that Plaintiff created a user identification
for purposes of payroll. (Donlon Reply Decl, Exh. J.) While the evidence
involves triple hearsay, Defendants have not explained the relevance of a payroll
user identification to establish Plaintiff’s agreement to arbitrate. Additionally,
one of the emails admits the evidence is misleading. (Id. .pdf p. 6).
V.
CONCLUSION
Defendants have not established
that Plaintiff agreed to arbitrate his claims by electronically accessing and completing
the online onboarding process. Notwithstanding
this failure, the Court GRANTS Defendants’ alternative request to continue the
hearing to conduct focused discovery and submit evidence relevant to this
motion. (Reply 9:13-20.; Bouton
v. USAA Casualty Ins. Co. (2008) 167 Cal.App.4th 412, 427 ["the
Civil Discovery Act's provisions apply to Code of Civil Procedure section
1281.2 proceedings. Accordingly, parties to a Code of Civil Procedure section
1281.2 proceeding have discovery rights under the Civil Discovery Act, subject
to the relevancy requirement and other provisions limiting the scope and timing
of that discovery.”].
The Court continues the hearing to
_____________________ at 8:30 a.m. in Department A of the Compton courthouse.