Judge: Robert B. Broadbelt, Case: 23STCV03232, Date: 2023-10-09 Tentative Ruling

Case Number: 23STCV03232    Hearing Date: October 24, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant University of Southern California           

RESPONDING PARTY:       Plaintiff Gloria Ibe

Motion to Compel Arbitration and for Dismissal or, Alternatively, Stay of Proceedings

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS

            The court rules on defendant University of Southern California’s evidentiary objections, filed on October 17, 2023, as follows:

            The court overrules Objections Nos. 1-9.

DISCUSSION

Defendant University of Southern California (“Defendant”) moves the court for an order (1) compelling plaintiff Gloria Ibe (“Plaintiff”) to arbitrate the claims alleged in her Complaint, and (2) dismissing, or, alternatively, staying proceedings in this action pending completion of arbitration.

A written provision in any contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.[1]¿ (9 U.S.C. § 2.) ¿ The Federal Arbitration Act (“FAA”) requires courts to direct parties to proceed to arbitration on issues covered by an arbitration agreement upon a finding that the making of the arbitration agreement is not in issue.¿ (9 U.S.C. § 4; Chiron Corp. v. Ortho Diagnostic Sys. (9th Cir. 2000) 207 F.3d 1126, 1130.)¿ “The court’s role under the [FAA] is therefore limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.”¿ (Chiron Corp., supra, 207 F.3d at p. 1130.)¿ The FAA reflects “both a ‘liberal federal policy favoring arbitration,’ [citation], and the ‘fundamental principle that arbitration is a matter of contract,’ [citation].”¿ (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)¿¿ 

“‘ “The party seeking to compel arbitration bears the burden of proving the existence of an arbitration agreement, while the party opposing the petition bears the burden of establishing a defense to the agreement’s enforcement.” ’”¿ (Beco v. Fast Auto Loans (2022) 86 Cal.App.5th 292, 302.)¿ The burden of production as to this finding shifts in a three-step process.¿ (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)¿ First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate, which can be met by attaching a copy of the arbitration agreement purporting to bear the opponent’s signature.¿ (Ibid.)¿ If the moving party meets this burden, the opposing party bears, in the second step, the burden of producing evidence to challenge its authenticity.¿ (Ibid.)¿ If the opposing party produces evidence sufficient to meet this burden, the final step requires the moving party to establish, with admissible evidence, a valid arbitration agreement between the parties.¿ (Ibid.)¿¿¿¿ 

First, the court finds that Defendant has met its burden to produce prima facie evidence of a written agreement to arbitrate between Plaintiff and Defendant.

Defendant submits a copy of the document entitled “Agreement to Arbitrate Claims (revised December 2017)” (the “Arbitration Agreement”), which is dated February 15, 2019 and states “By: Gloria Ibe[.]”  (Cohen Decl., Ex. E, Arbitration Agreement.)   Defendant also submits the declaration of its Associate Administrator of Human Resources (“Cohen”), in which Cohen states the following.  (Cohen Decl., ¶ 2.)  On February 15, 2019, Defendant offered Plaintiff employment as a Certified Nurse Assistant at USC Verdugo Hills Hospital.  (Cohen Decl., ¶ 11.)  Defendant provided to Plaintiff an offer letter, at-will employment agreement, and agreement to arbitrate claims via her Workday account.  (Ibid.)  When Plaintiff accessed her Workday account, she had a link to access each document, including the Arbitration Agreement.  (Cohen Decl., ¶ 12.)  To electronically sign the Arbitration Agreement, an applicant was required (1) to sign on to his or her personal Workday account by entering his or her unique username and password, (2) to access the Arbitration Agreement, (3) to affirmatively check the box marked “I agree,” and (4) to click the “submit” button.  (Cohen Decl., ¶ 13.)  An electronic signature would appear “only if the applicant checked the ‘I agree’ box and the ‘submit’ button.”  (Ibid.)  Plaintiff’s Workday account shows that she signed the Arbitration Agreement “on ‘2/20/2019 at 1:30:40 P.M.’”  (Cohen Decl., ¶ 14.)

Thus, the court finds that Defendant has met its burden to show the existence of a written agreement to arbitrate purporting to bear Plaintiff’s electronic signature.

The court further finds that Plaintiff’s causes of action are encompassed by the Arbitration Agreement.

The Arbitration Agreement provides that the parties “agree to the resolution by arbitration of all claims, whether or not arising out of Employee’s University employment, remuneration, or termination, that Employee may have against the University or any of its related entities . . . .  The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); claims for personal, physical, or emotional injury, or for any tort; claims for discrimination or harassment (including, but not limited to, race, sex, religion, national origin, age, marital status, sexual orientation, gender identity or expression, military and veteran status, or medical condition of disability); claims for ‘whistleblowing’ or retaliation; and claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance.”  (Cohen Decl., Ex. E, Arbitration Agreement, p. 1, ¶ 2.)  The Arbitration Agreement excludes from its scope various claims, including claims brought under Title VII of the Civil Rights Act of 1964, tort claims “if they are related to or arising out of sexual assault or harassment[,]” and whistleblower claims under the American Recovery and Reinvestment Act of 2009.  (Ibid.)

Here, Plaintiff alleges seven causes of action for (1) racial harassment in violation of California’s Fair Employment and Housing Act (“FEHA”); (2) racial discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination and retaliation in violation of FEHA; (5) retaliation in violation of Labor Code section 1102.5; (6) intentional infliction of emotional distress; and (7) whistleblower retaliation.  The court therefore finds that Plaintiff’s causes of action fall within the scope of the Arbitration Agreement because (1) they fall within the claims specifically delineated thereby (i.e., claims against Defendant of any kind, including claims for tort, discrimination or harassment on the basis of race, retaliation, and violation of other state laws), and (2) they do not fall within any of the exclusions (i.e., tort claims based on sexual assault or sexual harassment, claims under Title VII, or whistleblowing claims under the American Recovery and Reinvestment Act of 2009).  (Cohen Decl., Ex. E, Arbitration Agreement, p. 1, ¶¶ 2-3.)

Second, the court finds that Plaintiff has not met her burden to produce evidence to challenge the authenticity of the Arbitration Agreement.

Plaintiff submits her declaration, in which she states that (1) at no time during her employment with Defendant did she sign any arbitration agreement, and (2) she did not sign the Arbitration Agreement submitted by Defendant in support of this motion.  (Ibe Decl., ¶¶ 2, 4.)  Plaintiff also takes issue with the form of the Arbitration Agreement because it includes a typed, electronic signature.  (Cohen Decl., Ex. E, Arbitration Agreement, p. 2 [stating “By: Gloria Ibe”].) 

However, Plaintiff has not presented evidence disputing the showing made by Defendant attributing the electronic signature on the Arbitration Agreement to Plaintiff.  Specifically, Plaintiff has not presented evidence disputing that (1) in order to apply for employment with Defendant, an applicant was required to create a Workday account by selecting a unique username and password; (2) Defendant “does not have access to any user’s passwords[;]” (3) to access and sign Defendant’s employment documents, an applicant “had to user their unique usernames and passwords[;]” (4) it was Defendant’s practice to require applicants to sign these documents before employment; (5) to electronically sign the Arbitration Agreement, an applicant was required to sign onto their Workday account, affirmatively check the box labeled “I agree” and click “submit;” (6) the electronic signature would appear on the Arbitration Agreement “only if the applicant affirmatively checked the ‘I agree’ box and the ‘submit’ button[;]” and (7) Plaintiff’s Workday account “shows she signed the [A]rbitration [A]greement” on February 20, 2019, at 1:30:40 p.m.  (Cohen Decl., ¶¶ 6-7, 13-14.) 

Thus, the court finds that Plaintiff’s assertion that she did not sign the Arbitration Agreement is insufficient to challenge the authenticity of the Arbitration Agreement or her electronic signature affixed thereto.

Even if Plaintiff had met her burden to challenge the authenticity of the Arbitration Agreement with this declaration, the court finds that Defendant has met its burden, in the third step, to produce evidence showing that there is a valid Arbitration Agreement between them.  As set forth above, Defendant has presented evidence establishing that, for Plaintiff’s signature to appear on the Arbitration Agreement, she had to take affirmative steps in agreeing to the Arbitration Agreement during onboarding, which Plaintiff did not sufficiently rebut.  Further, although Plaintiff appears to take issue with the electronic nature of the signature, “an electronic signature may be attributed to a person if ‘it was the act of the person.’”  (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545; Civ. Code, § 1633.9, subd. (a).)  “The act of the person may be shown in any manner, including a showing of 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, subd. (a).)  The court finds that the evidence presented by Defendant is sufficient to show that the electronic signature on the Arbitration Agreement was “the act of” Plaintiff.  (Ibid.) 

Thus, the court finds that (1) Defendant has met its burden of proving the existence of an agreement to arbitrate this controversy, and (2) Plaintiff has not met her burden of establishing that the Arbitration Agreement is invalid or unenforceable, but even if she had met her burden, Defendant ultimately met its burden to prove that the Arbitration Agreement is valid and that it may compel Plaintiff to arbitration pursuant thereto.  (Beco, supra, 86 Cal.App.5th at p. 302.)

The court therefore grants Defendant’s motion to compel arbitration.  The court stays this action pending resolution of arbitration and denies Defendant’s request that the court dismiss the action.  (9 U.S.C. § 3.)

ORDER

The court grants defendant University of Southern California’s motion to compel arbitration and to dismiss action or, alternatively, stay proceedings, as follows.

The court orders (1) plaintiff Gloria Ibe and defendant University of Southern California to arbitrate the claims alleged in plaintiff Gloria Ibe’s Complaint, and (2) this action is stayed until arbitration is completed.

The court sets an Order to Show Cause re completion of arbitration for hearing on May 23, 2024, at 8:30 a.m., in Department 53.   

The court orders defendant University of Southern California to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 24, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court