Judge Randolph M. Hammock, Case 22STCV28039 2023-04-19 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV28039, Date: 2023-04-19 Tentative Ruling

This is an employment dispute. Plaintiff Tiffany Boyd worked for Defendant 99 Cents Only Stores as an assistant manager of merchandising. Plaintiff alleges she suffered from anemia and also sustained injuries when she fell from a company truck. Plaintiff alleges both caused recurring medical issues that led to her termination on October 7, 2021. Plaintiff brings this action for (1) disability discrimination, (2) failure to reasonably accommodate, (3) failure to engage in good-faith interactive process, (4) retaliation for exercising medical leave rights, (5) failure to prevent discrimination, (6) intentional infliction of emotional distress, (7) negligent hiring, training, supervision and retention of employees, (8) wrongful termination in violation of public policy, and (9) failure to provide employment file.

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353). “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.” (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205).

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284).

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. . . .” (CCP § 1281.4.)

Both parties have submitted objections to evidence. This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.

California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. “Even so, parties can only be compelled to arbitrate when they have agreed to do so.” (Avila v. S. California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835, 843.) “The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Id.)

An arbitration agreement is a contractual agreement. “General contract law principles include that ‘[t]he basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] ... The words of a contract are to be understood in their ordinary and popular sense.” [Citations.] (Garcia v. Expert Staffing W., 73 Cal. App. 5th 408, 412–13.)

Defendant has the initial burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 165.) “[I]t is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215, 218.)

Defendant submits evidence that Plaintiff executed a binding arbitration agreement at the onset of her employment. Defendant submits a declaration from Mary Kay Delgado, Defendant’s Senior Corporate Paralegal. (See Delgado Decl. ¶ 2.) Delgado attests that she has worked for Defendant “at least since” Plaintiff started her position. (Id. ¶ 3.) She further attests that Plaintiff “voluntarily entered into an arbitration agreement with Defendant” on January 10, 2019, at the time of her hiring. (Id. ¶ 4.) The Agreement provides, in relevant part:

[The parties] hereby agree that any dispute with any party…that may arise from or in connection with Employee’s employment with the Company or the termination of Employee’s employment with the Company must be submitted for resolution by mandatory, binding arbitration.

The arbitration requirement applies to all claims, including without limitation federal, state and local statutory, constitutional, contractual and/or common law claims, arising from or in connection with Employee’s employment with the Company or termination therefrom including, but not limited to, claims arising under…the California Fair Employment and Housing Act, the California Labor Code, California Industrial Welfare Commission Wage Orders; [and] California Business and Professions Code section 17200 et seq.

The Agreement expressly states that arbitration is to be governed by the FAA, and the court will therefore apply the FAA where necessary. (See Davis v. Shiekh Shoes, LLC (2022) 84 Cal. App. 5th 956, 963 [finding the FAA applies “if it is so stated in the agreement.”].)

This switches the burden to Plaintiff, who “bears the burden of producing evidence to challenge the authenticity of the agreement.” (Gamboa, supra, 72 Cal. App. 5th at 165.) Plaintiff can do this in “several ways,” including by “declar[ing] 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.” (Id.)

Instead, she contends she never signed the agreement, and in fact “was never even presented or given access to an arbitration agreement.” (Boyd Decl. ¶ 3.) Rather, Plaintiff attests that the employer emailed her a link to access her onboarding forms from home, but that “[t]he link did not work.” (Id. ¶ 4.) She informed her hiring manager, Uriel Garcia, who “told [her] to report to the Burbank store location and complete the forms on the store’s own computer system.” (Id.) However, the store’s computer system also would not allow her to access the forms. (Id.) In response, manager Garcia told her “to write down all of [her] personal information on a pad of paper and that he would see what he could do.” (Id.) “A few days later,” Garcia told Plaintiff that “he had completed all of the forms” for her. (Id.) Plaintiff’s “understanding” was that Garcia had completed her “payroll, tax and benefit forms.” (Id.) But Plaintiff asserts that “she never received, viewed, completed, consented to or otherwise signed an arbitration agreement.” (Id. ¶ 5)

This places the final burden on Defendant to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.) In determining whether Plaintiff signed the agreement by a preponderance of the evidence, this court must necessarily sit as the trier of fact and resolve evidentiary conflicts. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284).

Defendant submits new evidence in reply by declaration of Vanessa Lopez Tarin. [FN 1] Tarin is a Senior HR Operations Manager with Defendant. (Tarin Decl. ¶ 2.) Tarin contends that Defendant utilized the Ceridian/Dayforce electronic onboarding system at the time of Plaintiff’s employment. (Id. ¶ 3.) She contends the system sent an email to Plaintiff’s personal email address to begin the onboarding process. (Id.) The system then requires that the employee confirm their identity by entering their phone number. (Id. ¶ 5.) The employee must also create a unique password and two unique security questions. (Id.) From there, the employee can access the system and complete the onboarding documents, including the arbitration agreement. (Id. ¶ 6.)

Tarin further disputes that Uriel Garcia did or even could have completed Plaintiff’s onboarding documents for her. She attests that “[i]t would have been impossible” for Uriel Garcia to access Plaintiff’s email from the Burbank computer because the computer cannot access Yahoo Mail or any personal mail server. (Id. ¶ 12.)

As raised by Plaintiff, the case Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal. App. 4th 836, 844, is instructive. There, the issue was whether an electronic signature was the “act of” the employee. The employee did not recall signing the agreement. And the employer provided only a declaration from the employer’s business manager “offer[ing] her unsupported assertion that [the employee] was the person who electronically signed the 2011 agreement.” (Id.) The court held that “[i]n the face of [the employee’s] failure to recall electronically signing the 2011 agreement”, and the employer’s failure to adequately authenticate the agreement, the electronic signature “was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ [the employee].” (Civ. Code, § 1633.9, subd. (a).) The court noted that authenticating an electronic document or signature is “not a difficult evidentiary burden to meet,” but that it was not met in that case. (Id. at 844.)

Also instructive is Espejo v. S. California Permanente Med. Grp., (2016) 246 Cal. App. 4th 1047, 1053. There, the court came to the opposite conclusion of Ruiz, finding the employer had met its burden “by attaching to their petition a copy of the purported arbitration agreement bearing Espejo's electronic signature.” (Id. at 1060 [emphasis added].) Unlike in Ruiz, the Espejo defendant “had sufficiently security precautions regarding transmission and use of an applicant's unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement.” (Id. at 1062.)

The agreement here contains no unique electronic signature. It has only a “checked box” signaling the signor agreed to “accept and acknowledge the company policy.” (Delgado Decl. Exh. 1.) But there is no other form of identification to signify that Plaintiff (and not someone else) signed the agreement.

Defendant presents a mostly “unsupported assertion” that it was Plaintiff who signed the Agreement, but has failed to present any first-hand knowledge in support. (Ruiz, supra, 232 Cal. App. 4th at 844.) This also must be considered in light of Plaintiff’s flat contention that she did not sign the agreement.

Instead, she contends to have given all of her “personal information” to Garcia so he could complete the onboarding for her. Presumably this personal information included her phone number and personal email credentials, which were apparently the only information needed to set-up an account with the Dayforce program. Based on Plaintiff’s version of the facts, it’s not a stretch to imagine Garcia did, in fact, do just that.

Finally, Defendants contention that it was impossible for Garcia to access Plaintiff’s email on the Burbank computer is considered, but of little consequence. Even accepting the contention as correct, there is nothing to suggest that Garcia used the computer at the Burbank store. Indeed, Plaintiff herself contends that she couldn’t access the forms on that very computer in the first place—hence why she passed along her “personal information” to Garcia. Defendant has therefore failed to effectively rebut Plaintiff’s contention that Garcia filled out the Arbitration Agreement for her.

Additionally, there was no evidence otherwise submitted by the Defendants that Plaintiff was ever informed or even knew of the existence of an arbitration agreement. Hence, Defendants cannot reasonably assert that Plaintiff is estopped from denying the existence of an arbitration agreement. A written and fully executed arbitration agreement is not necessarily required to establish a valid agreement to arbitrate. Courts have recognized an “implied-in-fact” agreement to arbitrate where the employee's continued employment constitutes acceptance of an agreement proposed by the employer. (See Asmus v. Pacific Bell (2000) 23 Cal.4th 1; see also Craig v. Brown & Root, Inc. (2000) 84 Cal. App. 4th 416.) [FN 2]

Last, but not least, it is further noted that the general rule which states that any doubts about the viability of an arbitration agreement should be resolved in favor of its enforceability, does not apply to the issue of the existence of such an agreement. Defendants bear the burden of proving same. Based on a preponderance of the evidence and the totality of the circumstances, Defendant has failed to meet its burden to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.)

FN 1 - This court is aware that as a general rule, new evidence may not be submitted in reply. But “a trial court may properly consider new evidence submitted with a reply brief ‘so long as the party opposing…has notice and an opportunity to respond to the new material.’” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1183.) Plaintiff will be afforded the opportunity to respond to this new evidence at the hearing, as necessary.

FN 2 - “ ‘Implied-in-fact contracts are found in cases with unexecuted arbitration agreements when (1) employees have knowledge of the arbitration agreement and (2) employees continue to work after receipt of the arbitration agreement. In such cases, courts have held that the employees' continued employment constitutes their acceptance of the agreements to arbitrate.’ ” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1507.) This analysis is highly “fact specific” and depends not just on the parties’ conduct, but also on the language of the employer’s policies. (Douglass v. Serenivision, Inc. (2018) 20 Cal. App. 5th 376, 388; Mendoza v. Trans Valley Transp. (2022) 75 Cal. App. 5th 748, 791.) Unfortunately for the Defendants, such is not the case here.