Judge: Nathan R. Scott, Case: "Elliot vs. The Habit Restaurants, Inc.", Date: 2022-10-07 Tentative Ruling

Case Management Conference

An 8-day jury trial is set for 3/15/24 at 11:30 am in Dept. W2 – trial call only; trial days are Mon., Tue., and Wed.  Any outstanding jury fees are due within 5 days of this order. 

The court encourages the parties to mediate this case.  The court’s Civil Mediation Program is one good option; information is posted on the court’s website.  If the parties do not mediate yet answer ready for trial, they should expect to attend a mandatory settlement conference before trial commences.

All parties are ordered to comply with the department pretrial order, which is available on the department website

Arbitration Motion

Defendants The Habit Restaurants Inc. and The Habit Restaurants LLC’s motion to compel arbitration is denied. (See Code Civ. Proc. § 1281.2.)

Defendants met their burden to show a written arbitration agreement exists that covers plaintiff’s claims.  (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.)

Defendants met their initial burden to produce “‘prima facie evidence of a written agreement to arbitrate the controversy.’”  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; see 3/1/22 Corners decl. ¶¶ 6-11 & Ex. A.)

Plaintiff Geannia Elliot met her shifted burden to “produc[e] evidence to challenge the authenticity of the agreement” with sworn statements that she “does not remember seeing the agreement” and “does not remember signing the agreement.”  (Gamboa, supra, 72 Cal.App.5th at p. 165; see 9/2/22 Kangavari decl. Ex 2 [Elliot depo.] at pp. 71-72.)

But defendants then met their burden to “establish with admissible evidence a valid arbitration agreement between the parties. (Gamboa, supra, 72 Cal.App.5th at p. 165; accord Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047 1052, 1061-1062 [authentication of electronic signatures]; see 9/9/22 Ruiz decl. ¶¶ 6-14; 9/9/22 Price decl. Ex. 3 [Corners depo.] at pp. 31-32, 35-36, 48, 62-63; 9/22/22 Price decl. Ex. 4 [Elliot depo.] at pp. 49-50.)

While defendants have shown plaintiff entered into the arbitration agreement, plaintiff has shown she timely opted out.

The agreement allowed plaintiff to “opt out and not be subject to this Agreement” by sending written notice “within 30 days of your receipt of this Agreement.”  (3/1/22 Corners decl. Ex. A § 8.)

Plaintiff sent proper opt-out notice to defendant within a week of first receiving a copy of the agreement from defendants.  (See 3/1/22 Price decl. ¶¶ 3, 7 & Exs. 2, 6; 9/2/22 Kangavari decl. Ex. 1 [Corners depo.] at pp. 58-59, 84-85.)

Defendants contend plaintiff received the agreement when she accessed it and electronically signed it during her onboarding.  (See Reply at p. 9.)  But plaintiff accessed and signed the agreement on defendants’ laptop; after the onboarding, the laptop remained with defendants.  (See Ruiz decl. ¶¶ 6 [manager’s laptop], 12 [plaintiff returned laptop to manager].)  Defendants offer no evidence that it handed her a hard copy of the agreement or emailed her an electronic copy of it during her onboarding. 

The court cannot conclude “receipt” includes temporary electronic access to a document for the limited purpose of reading and signing it, without being given a copy of it.  (See Civ. Code, § 1654 [ambiguities construed against drafter].)  “Receipt” implies an opportunity to carefully review the agreement during the 30-day window.

Plaintiff’s 9/2/22 objections are overruled.

Plaintiff’s 9/12/22 objections are overruled.  Given the “three-step process” (Gamboa, supra, 72 Cal.App.5th at p. 165), it is appropriate for defendants to submit new evidence on reply.  (See Espejo, supra, 246 Cal.App.4th at p. 1060 [trial court wrongly struck defendant’s supplemental declaration “[b]ecause defendants were not required to establish the authenticity of [the plaintiff’s] signature on the [agreement] until challenged by [plaintiff] in his opposition”].)  It is likewise appropriate for the court to consider plaintiff’s surreply, which the court has done.
 

Plaintiff’s 9/30/22 objections are overruled.  While defendant should not have made any modification to the Price declaration other than supplying the omitted exhibit, the modifications are not substantive and thus immaterial.

Defendants shall give notice.