Judge: Randall J. Sherman, Case: 2022-01264030, Date: 2022-11-18 Tentative Ruling

Defendant Motorsports of Los Angeles, LLC’s Motion to Compel Arbitration is denied.  Plaintiff’s General Objection #1 to the Declaration of Terry Tallerino is overruled.  Plaintiff’s Specific Objections #1-2 to the Declaration of Terry Tallerino are overruled, and #3-6 are sustained.  Plaintiff’s Specific Objections #1, 2 and 5 to the Declaration of Heather Daiza are sustained, and #4 is overruled.  (There is no #3.)  Defendant’s Specific Objections #1 and 3 to the Declaration of Carenna Vargas are overruled, #2 is sustained as to the first sentence and overruled as to the second sentence, and #4 is overruled as to the first sentence and sustained as to the second sentence.  Defendant’s Specific Objections to the Declaration of Eric Yaeckel are sustained in full.

The case of Gamboa v. Northeast Community Clinic (2021) 72 Cal. App. 5th 158, 165, compels the denial of this motion.  There, a defendant-employer moved to compel arbitration.  The court held, “First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy, [which] the moving party can meet by attaching to the motion a copy of the arbitration agreement purporting to bear the opposing party’s signature.”  That is exactly what defendant did here.  “The opposing party bears the burden of producing evidence to challenge the authenticity of the agreement.  The opposing party can do this in several ways.  For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.”  (The underlined language defeats defendant’s argument that it was insufficient for plaintiff to deny any of recall of signing the agreement, rather than deny signing the agreement)  Here, plaintiff testified that she does not recall signing the agreement.  “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.  The burden of proving the agreement by a preponderance of the evidence remains with the moving party.”  72 Cal. App. 5th at 165-66.  Defendant here alleges that it met its burden on this motion simply by providing a signed arbitration agreement with the moving papers, supported by an employer declaration that these agreements are maintained in the ordinary course of business.  But the Gamboa court drew a distinction between the first and third steps.  Plaintiff says she does not recall signing the arbitration agreement, requiring defendant to respond with more evidence, but defendant responded simply with more argument.  The court concludes that defendant has not adequately established that the signature on the arbitration agreement is plaintiff’s.  A comparison with plaintiff’s other signatures is inconclusive, and defendant provides no witness to plaintiff’s alleged signing of the agreement.  Thus, this motion must be denied.

The Case Management Conference set for today is continued to January 19, 2023 at 9:00 a.m.  The parties must file a Joint Case Management Statement at least a week before the CMC.  Counsel must use pleading paper rather than Judicial Council Form CM-110, and should include in the Statement a discussion of the applicable subjects set forth in CRC Rule 3.727.

Plaintiff is ordered to give notice unless notice is waived.