Judge: Michael Shultz, Case: 22STCV05884, Date: 2023-03-14 Tentative Ruling
Case Number: 22STCV05884 Hearing Date: March 14, 2023 Dept: A
22STCV05884 Jane Doe v. Healthcare Career College, Alex Arviso
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint
alleges that Plaintiff was a student of Alex Arviso (“Arviso”) at Healthcare
Career College when she was sexually assaulted by Arviso. Plaintiff alleges
claims for assault, battery, intentional infliction of emotional distress,
negligent hiring, and retention, and for negligence.
Defendant,
Infotech Institute, Inc., dba Healthcare Career College (“Infotech”), requests
an order compelling Plaintiff to submit the claims to binding arbitration
pursuant to the parties’ agreement. The agreement is enforceable and applies to
any dispute against Infotech as well as its employees.
In opposition, Plaintiff
argues that under federal law, the arbitration agreement is voidable at
Plaintiff’s election because the complaint involves sexual assault. Plaintiff
denies that she signed the purported arbitration agreement, and Defendant did
not prove that Plaintiff electronically signed it. The delegation clause in the
agreement is not enforceable and it is unconscionable. Defendant waived its right
to arbitrate.
In reply,
Defendant argues that the recently enacted federal statute on which Plaintiff
relies does not apply because Plaintiff’s dispute arose prior to the statute’s
enactment. The arbitration agreement is authenticated and admissible. Defendant
raised arbitration as an affirmative defense and did not waive the right to
compel it.
II.
LEGAL STANDARDS
The
court “shall” compel arbitration if it determines that an agreement to
arbitrate the controversy exists, unless the right to arbitration has been
waived or there are grounds for rescission of the agreement. (Code Civ. Proc., § 1281.2). The petitioner’s burden is to establish that
a valid arbitration agreement exists. The opposing party’s burden is to
establish a defense to enforcement based on a preponderance of evidence. (Molecular
Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 705).
Defendant’s
burden in moving to compel arbitration 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."]). Therefore, all of Plaintiff’s
objections to the Declaration of Armita Garg are OVERRULED.
III.
DISCUSSION
A.
Plaintiff did not establish that federal
statute applies to bar arbitration of this action or that Defendant waived the
right to arbitrate.
To establish a waiver of the right to
arbitrate, Plaintiff must show that Defendant engaged in acts “inconsistent
with the right to arbitrate” or engaged in litigation on the merits resulting
in prejudice to Plaintiff. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203 [prejudice does not occur by “mere”
participation in litigation]). Plaintiff’s contention that Defendant delayed by
90 days in filing the motion does not establish waiver of the right to
arbitrate.
Plaintiff’s reliance on 9 U.S.C.,
section 402 is misplaced. That statute provides that a pre-dispute arbitration
agreement is not enforceable if a person alleges conduct constituting sexual
harassment or sexual assault. (9 U.S.C.A. § 402 (West)). The statute applies to any dispute
or claim that arises or accrues on or after the date of its enactment. (PL 117-90, March 3, 2022, 136 Stat 26). Plaintiff’s claims arose on July 1,
2020, when she alleged the sexual assault took place. (Complaint, ¶ 2).
B.
Defendant has not established the
electronic signature on the agreement is attributable to Plaintiff.
Defendant contends
that students typically access enrollment documents by signing on to their
online portal and electronically signing the arbitration agreement. (Garg decl., ¶ 4-5, Ex. A). Plaintiff declares that she signed
“a bunch of papers” given to her by her admissions officer. (Decl. of Jane Doe, ¶ 8). She declares she never signed an
arbitration agreement, nor did she see one in the papers she was directed to
sign. (Doe decl, ¶¶ 9-11).
Where electronic signatures are
involved, Defendant is required to authenticate Plaintiff’s signature since
Plaintiff denies signing the agreement. (See Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844). Defendant can attribute the signature to
Plaintiff by showing the "efficacy of any security procedure applied to
determine the person to which the electronic record or electronic signature was
attributable.” (Civ. Code, § 1633.9, (a)). The effect of an electronic
signature attributed to a person "is determined from the context and
surrounding circumstances at the time of its creation, execution, or adoption,
including the parties' agreement, if any, and otherwise as provided by
law." (Civ. Code, § 1633.9, (b)).
A party can establish that the
electronic signature was the act of Plaintiff “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). Ms. Garg, Defendant’s CEO and Campus
president attests to Infotech’s “standard practice” but does not attest to any
security procedures required to access Plaintiff’s on-line portal or evidence
to establish that Plaintiff did access the on-line portal, or when and at what
time. (Ruiz, supra at 844 [where the court of appeal found a
“critical gap in the evidence” to infer that the electronic signature was in
fact the employee’s without evidence to show that only the employee could have
affixed the electronic signature.]).
Ms. Garg avers that students are
able to sign documents using “HelloSign” or another comparable method for
electronically signing documents,” however, there is no explanation or evidence
of which method Plaintiff used, or the process by which that method could or
did verify Plaintiff’s electronic signature. (See Ruiz at 845), (Garg Decl., ¶ 6).
Accordingly, since Defendant did not
meet its burden of establishing that Plaintiff signed the arbitration
agreement, whether the agreement is procedurally or substantively
unconscionable is superfluous.
IV.
CONCLUSION
As Defendant has not proffered
sufficient evidence authenticating Plaintiff’s electronic signature as required
by statute, the motion is DENIED.