Judge Randolph M. Hammock, Case Number: 23STCV10386, Date: 2023-11-02 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV10386, Date: 2023-11-02 Tentative Ruling

Plaintiff Jacquelyn Ellis alleges she worked as a Sales Coordinator at a cannabis dispensary owned and operated by Defendant MVN Productions, LLC. Plaintiff alleges Defendant interfered with her medical leave, retaliated against her for taking medical leave, and committed wage and hour violations, among other things.

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.)

“[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.)

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.)

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 submits a declaration from Taleen Zakarian, Defendant’s Director of Human Resources and Operations. (Zakarian Decl. ¶ 3.) Zakarian is “familiar with Plaintiffs onboarding process and employment history with MVN.” (Id.) “As part of her onboarding, Plaintiff was provided electronic copies of various MVN employment documents, including MVN's Meal and Rest Break Policy; the Overtime Policy; and a copy of the Arbitration Agreement.” (Id. ¶ 6.) “Plaintiff was given ample time to read and review all relevant materials and voluntarily choose to sign, or not sign, any agreement. On March 23, 2021, Plaintiff electronically signed the Arbitration Agreement.” (Id. ¶ 7.)

I understand and agree that as a condition of my employment, or continued employment, all such disputes that may arise will be exclusively resolved through confidential, final and binding arbitration. I anticipate gaining benefits of a speedy and impartial resolution through the arbitration process, where only an arbitrator, not a judge or a jury, will decide the dispute.

The Agreement covers “all claims, disputes, controversies, or disagreements of any kind whatsoever (‘Claims’), whether past, present, or future, including without limitation all claims arising out of or in connection with [Plaintiff’s] employment or the termination of [Plaintiff’s] employment that the Company may have against [Plaintiff] or that [Plaintiff] may have against…the Company.” (Id.)

The Agreement is broad enough to cover all of Plaintiff’s claims here; Plaintiff does not contend otherwise. (See Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189 [noting that “arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question”].)

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.)

Plaintiff disputes that she signed the agreement to arbitrate. She states succinctly: “I did not sign, print my name on, or even receive that document (electronically or otherwise).” (Ellis Decl. ¶ 2.) Plaintiff also challenges the sufficiency of Defendant’s evidence, particularly the Zakarian Declaration. Therefore, Plaintiff has met her burden.

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 agreed to arbitrate 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).

In reply, Defendant submitted a supplemental declaration from Taleen Zakarian, who provides further context to Defendant’s onboarding process. 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 the motion for summary judgment 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.) Accordingly, this court exercises its discretion to consider the new evidence, and Plaintiff will be given the opportunity to address the new evidence at the hearing, as necessary.

Turning to the supplemental declaration, Zakarian attests that Defendant “utilizes a web based and mobile application platform called Gusto, Inc. to facilitate payroll, timekeeping, employee benefits, and onboarding.” (Supp. Zakarian Decl. ¶ 4.) Each employee completes onboarding through Gusto, which includes electronically signing the documents within the system. (Id. ¶¶ 7, 8.)

Zakarian explains that she registers new employees in Gusto, which sends an email to the new employee’s email prompting the new employee to finish setting up their account. (Id. ¶ 5.) She did this for Plaintiff by inputting the email provided by Plaintiff. (Id. ¶ 10.)

Once an employee receives a Gusto email, “Gusto requires each employee to confirm their email address and create a confidential password for their portal access. Gusto also requires each employee to enroll in two-factor authentication before logging into their Gusto employee portal on a new device. This extra layer of security requires employees to input a uniquely generated code that is sent via text message to their personal cellular phone.” (Id.) Neither Zakarian nor “any other Defendant employees” have access to any employee's Gusto password. (Id. ¶ 6.) Zakarian cannot access the Gusto portal “from the employee side.” (Id.)

As part of Plaintiff’s onboarding, Defendant presented Plaintiff with the Mutual Agreement to Arbitrate Claims in Gusto. (Id. ¶ 11.) Plaintiff’s employee portal reflects that she signed the Mutual Agreement to Arbitrate Claims, using her Gusto credentials, on March 23, 2021. (Id. ¶ 12.)

In opposition, Plaintiff contends this case is “an awful lot like” Fabian v. Renovate Am., Inc. (2019) 42 Cal. App. 5th 1062, 1064. There, the Court of Appeal affirmed the trial court’s denial of a motion to compel arbitration. The court noted that the defendant “offered no evidence about the process used to verify” the plaintiff’s signature, and only “summarily asserted” the plaintiff had entered into the agreement to arbitrate. (Id. at 1069, 1070.)

Here, however, Defendant has sufficiently described the electronic process that Defendant utilized for employee onboarding. Defendant has also explained the onboarding security measures in place that suggests with reasonable certainty that only Plaintiff could have signed the agreement. (See Espejo v. S. California Permanente Med. Grp. (2016) 246 Cal. App. 4th 1047, 1060 [employer defendant met burden to establish arbitration agreement where employer “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.)

Plaintiff’s only evidence that she did not sign the agreement is her flat, but unsupported assertion that she never saw or signed the document. [FN 1] Based on a preponderance of the evidence and the totality of the circumstances, this court finds that Defendant has met its burden to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.)

Judge of the Superior Court

FN 1 - Suffice it to state, this court is somewhat skeptical of such a bald claim, as most applicants for employment are ready, willing, and able to waive a right to a jury trial as a condition to obtain the job being sought. That is human nature.