Judge: Teresa A. Beaudet, Case: 24STCV05672, Date: 2024-11-13 Tentative Ruling

Case Number: 24STCV05672    Hearing Date: November 13, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On March 6, 2024, Plaintiff Carice Juanette Hill (“Plaintiff”) filed this action against Defendants Premier Infusion & Healthcare Services, Inc. (“PIHS”), Josephine Ambrocio, Victor Rivas, and Laura Spellman (collectively, “Defendants”).

The Complaint alleges causes of action for (1) discrimination based upon physical disability, (2) failure to prevent discrimination, (3) retaliation in violation of public policy,

(4) harassment due to physical disability, (5) failure to accommodate physical disability,

(6) failure to engage in a good faith interactive process, (7) wrongful termination in violation of public policy, (8) failure to provide meal periods, (9) failure to provide rest periods, (10) waiting time penalties, (11) failure to pay wages due at termination, (12) failure to reimburse business expenses, (13) failure to pay uniform maintenance allowance, (14) failure to allow inspection of employment records, and (15) unfair competition.

Defendants now move for an order compelling arbitration of Plaintiff’s claims and staying all proceedings until completion of binding arbitration. Plaintiff opposes. 

Legal Standard

In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). ((Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.)  

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. ((Code Civ. Proc., § 1281.2); (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” ((Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” ((Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. section 2, et seq.; (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

            Discussion

A.    Existence of Arbitration Agreement

In the Complaint, Plaintiff alleges, inter alia, that she “began working for PIHS on or about February 1, 2023 and was wrongfully terminated on or about January 30, 2024. Plaintiff’s job position was Payroll Coordinator.” (Compl., ¶ 13.) Plaintiff alleges that she “was denied a work environment free of disability discrimination.” (Compl., ¶ 14.)

In support of the motion, Defendants submit the Declaration of Sammy Refua, who is “the Chief Executive Officer at Premier Infusion & Healthcare Services, Inc. and [has] been employed with Premier Infusion & Healthcare Services, Inc, since its inception.” (Refua Decl., ¶ 2.) Mr. Refua states that “[u]pon hiring, Premier Infusion & Healthcare Services, Inc. employees receive an email directly from DocuSign containing a link to the document signature process. This email, exclusively provided to each new hire, including [Plaintiff], is created such that no individual other than the employee receiving the link has access to the employee signature fields.” (Refua Decl., ¶ 5.)

Mr. Refua states that “I conducted a thorough review of Premier Infusion & Healthcare Services, Inc.’s business records and can confirm that the Arbitration Agreement was sent to Plaintiff on January 23, 2023, via DocuSign Envelope ID: A8D4A35E-E0FA-44B1-A471-67D92FBA506E, and that Plaintiff opened the Arbitration Agreement on January 24, 2023, at 2:57 p.m. Plaintiff thereafter signed Arbitration Agreement on January 24, 2023, at 3:46 p.m.” (Refua Decl., ¶ 6.) Mr. Refua attaches as Exhibit 1 to his declaration a “copy of Plaintiff’s Certificate of Completion.” (Refua Decl., ¶ 9, Ex. 1.)

Mr. Refua further states that “[w]hen an individual signs a document through DocuSign, such as the Arbitration Agreement, the system automatically time and date-stamps the signed document. I further verified that Plaintiff accessed and signed the Arbitration Agreement by reviewing Premier Infusion & Healthcare Services, Inc.’s business records and locating and examining the time and date-stamped Arbitration Agreement. Attached as Exhibit 2 is a true and exact copy of the Arbitration Agreement bearing Plaintiff’s hand-drawn electronic signature inside a text box labeled ‘DocuSigned by.’ These records confirm that Plaintiff utilized her unique DocuSign link to access and sign the Arbitration Agreement on January 24, 2023. Again, the Arbitration Agreement could only be electronically executed by Plaintiff using her individually assigned DocuSign link.” (Refua Decl., ¶ 10.)

Exhibit 2 to Mr. Refua’s declaration is titled “Mutual Agreement to Arbitrate Employment-Related Disputes” (herein, the “Arbitration Agreement”). (Refua Decl., ¶ 10, Ex. 2.) The Arbitration Agreement provides, inter alia, that “[t]he Employer and Employee agree that any claim, complaint, or dispute that relates in any way to the Parties’ employment relationship, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, shall be submitted to binding arbitration administered by American Arbitration Association in accordance with Employment Arbitration Rules and Mediation Procedures.” (Refua Decl., ¶ 10, Ex. 2, ¶ 2.) The Arbitration Agreement further provides as follows:

“3.Covered Claims. This Agreement to arbitrate covers all grievances, disputes, claims, or causes of action (collectively, ‘claims’) in a federal, state or local court or agency under applicable federal, state or local laws, arising out of Employee’s employment with the Employer and the termination thereof, including claims Employee may have against the Employer or against its officers, directors, supervisors, managers, employees, or agents in their capacity as such or otherwise, or that the Employer may have against Employee. The claims covered by this Agreement include, but are not limited to, claims for breach of any contract or covenant (express or implied), tort claims, and claims for wrongful termination (constructive or actual) in violation of public policy. (‘Covered Claims’).” (Refua Decl., ¶ 10, Ex. 2, ¶ 3, emphasis omitted.)

In addition, the Arbitration Agreement provides as follows:

“4.Claims Not Covered. The parties to this Agreement specifically agree that all claims under the West’s Annotated California Government Code § 12953 are not covered by this Agreement as well as claims for workers’ compensation, unemployment compensation benefits, administrative charges for unfair labor practices brought before the National Labor Relations Board, Excluded Claims (defined in Paragraph 5 below), claims for discrimination or harassment (including, but not limited to, harassment or discrimination based on race, sex, gender, religion, national origin, age, marital status, medical condition, psychological condition, mental condition, disability, or sexual orientation), claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans With Disabilities Act, the California Fair Employment and Housing Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, and Employee Retirement Income Security Act. The parties to this Agreement specifically agree that all claims under the California Labor Code, including, but not limited to, claims for overtime, unpaid wages, and claims involving meal and rest breaks shall be subject to this Arbitration Agreement, or any other claims that, as a matter of law, the Parties cannot agree to arbitrate. Nothing in this Agreement shall be interpreted to mean that employees are precluded from filing complaints with the California Department of Fair Employment and Housing and/or federal Equal Employment Opportunity Commission and National Labor Relations Board.” (Refua Decl., ¶ 10, Ex. 2, ¶ 4.)

            Defendants assert that accordingly, “Plaintiff entered into a valid and enforceable arbitration agreement.” (Mot. at p. 7:1.) Defendants assert that “Plaintiff’s Complaint, which states causes of action for wrongful termination in violation of public policy, failure to provide meal and rest periods, waiting time penalties, failure to pay wages due at termination, failure to allow inspection of employment records, failure to pay uniform maintenance allowance, and failure to reimburse business expenses are clearly covered by the Arbitration Agreement by its express terms. Therefore, the Court must order these causes of action to arbitration.” (Mot. at p. 7:11-16.)  

As an initial matter, Defendants appear to concede that the subject Arbitration Agreement does not cover all of the causes of action alleged by Plaintiff in this action. As Plaintiff notes and as set forth above, paragraph 4 of the Arbitration Agreement provides, inter alia, that “[t]he parties to this Agreement specifically agree that all claims under the West’s Annotated California Government Code § 12953 are not covered by this Agreement as well as…claims for discrimination or harassment (including, but not limited to, harassment or discrimination based on race, sex, gender, religion, national origin, age, marital status, medical condition, psychological condition, mental condition, disability, or sexual orientation), claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, including, but not limited to, all claims arising under…the California Fair Employment and Housing Act…” (Refua Decl., ¶ 10, Ex. 2, ¶ 4, emphasis added.)[1]

Accordingly, the Court does not find that the Arbitration Agreement covers Plaintiff’s first cause of action for discrimination based on physical disability in violation of Government Code, section 12940, subdivision (a); the second cause of action for failure to prevent discrimination from occurring in violation of Government Code section 12940, subdivision (k); the third cause of action for retaliation in violation of public policy[2]; the fourth cause of action for harassment due to physical disability (Gov. Code, § 12940(a)); the fifth cause of action for failure to accommodate physical disability in violation of Government Code section 12940, subdivision (m), the sixth cause of action for failure to engage in a good faith interactive process in violation of Government Code section 12940, subdivision (n); the seventh cause of action for wrongful termination in violation of public policy, Government Code section 12940, et seq.; and the fifteenth cause of action for unfair competition in violation of Business and Professions Code section 17200, et seq.[3]

In addition, Plaintiff asserts that she “never consented to arbitration.” (Opp’n at p. 6:3.) In her supporting declaration, Plaintiff states, inter alia, “[t]o the best of my recollection, I did not receive an email mentioning an arbitration agreement, and I was never informed about any arbitration agreement during the hiring process or after becoming employed.” (Hill Decl., ¶ 8.) Plaintiff states that “I have reviewed the electronic signature on Ex. 1 to the Declaration of Sammy Refua supporting the Defendant’s Motion. To the best of my knowledge, I did not electronically sign this document, and I never authorized anyone at PISH or otherwise to sign an arbitration agreement on my behalf.” (Hill Decl., ¶ 9.) Plaintiff cites to Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545, where the Court of Appeal noted as follows:

“Civil Code section 1633.9, subdivision (a) governs the authentication of electronic signatures. It provides that an electronic signature may be attributed to a person if ‘it was the act of the person.’ (Id., § 1633.9, subd. (a).) Further, ‘[t]he 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.’ (Ibid.) For example, a party may establish that the electronic signature was ‘the act of the person’ by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions.”

Plaintiff asserts that here, “Mr. Refua makes no effort to explain any security protocols in place at PIHS to ensure that the person who receives and electronically signs a document is its intended recipient and/or that nobody other than the intended recipient has access to the recipient’s email account. At best, Defendants have shown that someone signed the DocuSign linked to Plaintiff’s email account but have not demonstrated in any way that Plaintiff was the one to sign it nor how they could confirm such fact.” (Opp’n at p. 7:5-11.)

In the reply, Defendants assert that “Mr. Refua’s declaration clearly outlines the process by which DocuSign signatures are made and authenticated. DocuSign is a widely recognized electronic signature platform that employs robust security measures, including unique login credentials and secure transmission protocols, to ensure the authenticity of signatures. The use of such a platform inherently provides a level of security and reliability that supports the attribution of the electronic signature to Plaintiff.” (Reply at p. 5:1-5.) However, Defendants do not cite to any evidence to support this argument.

Defendants assert that “Mr. Refua’s declaration, by detailing the use of DocuSign, implicitly addresses the security procedures involved, thereby meeting the statutory requirements for authentication.” (Reply at p. 5:6-7.) But this argument appears to concede that Mr. Refua’s declaration does not expressly set forth “the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”

(Bannister v. Marinidence Opco, LLC, supra, 64 Cal.App.5th at p. 545.)

Defendants also assert that “the overall process described by Mr. Refua aligns with the standards set forth in Espejo, where the court accepted the authentication based on the security measures and procedures described in Castaneda v. Property Mgmt. Assocs., 2022 Cal. Super. LEXIS 78143.” (Reply at p. 5:8-10.)[4]

In Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1050-1051, “Jay Espejo, M.D., sued defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Joseph Huang, M.D. (collectively, defendants), alleging wrongful termination and whistleblower retaliation. Defendants petitioned to compel arbitration pursuant to Espejo’s employment agreement and associated documents. The trial court denied the petition, finding that defendants failed to establish the existence of an enforceable arbitration agreement between the parties. On appeal, defendants argue[d] the trial court erred in reaching that conclusion, and in striking a supplemental declaration filed in support of their petition. They further contend[ed] the arbitration agreement was valid and neither procedurally nor substantively unconscionable.” The Court of Appeal “conclude[d] the trial court erroneously excluded the declaration as untimely and further, the declaration established the existence of an agreement to arbitrate.” ((Id. at p. 1051.) The Court of Appeal in Espejo found as follows:

“…we find the supplemental Tellez declaration offered the critical factual connection that the declarations in Ruiz lacked. Tellez detailed SCPMG’s 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 and the DRP. Based on this procedure, she concluded that the ‘name Jay Baniaga Espejo could have only been placed on the signature pages of the employment agreement and the DRP by someone using Dr. Espejo’s unique user name and password. … [¶] Given this process for signing documents and protecting the privacy of the information with unique and private user names and passwords, the electronic signature was made by Dr. Espejo’ on the employment agreement and the DRP at the date, time, and IP address listed on the documents. These details satisfactorily meet the requirements articulated in Ruiz and establish that the electronic signature on the DRP was ‘the act of’ Espejo (Civ. Code, § 1633.9, subd. (a)), and therefore provide the necessary factual details to properly authenticate the document.” ((Id. at p. 1062.)

But here, by contrast, Defendants do not point to evidence detailing PIHS’s “security precautions regarding transmission and use of an applicant’s unique username and password,” or “the steps an applicant would have to take to place his or her name on the signature line” of the subject Arbitration Agreement. (Espejo v. Southern California Permanente Medical Group, supra, 246 Cal.App.4th at p. 1062.) Defendants do not show a “process for signing documents and protecting the privacy of the information with unique and private user names and passwords.” ((Ibid.) Rather, as set forth above, Mr. Refua solely indicates that “[u]pon hiring, Premier Infusion & Healthcare Services, Inc. employees receive an email directly from DocuSign containing a link to the document signature process. This email, exclusively provided to each new hire, including [Plaintiff], is created such that no individual other than the employee receiving the link has access to the employee signature fields.” (Refua Decl., ¶ 5.)

Based on the foregoing, the Court does not find that Defendants have provided sufficient evidence demonstrating that the electronic signature on the subject Arbitration Agreement was “the act of” Plaintiff. (Civ. Code, § 1633.9, subd. (a).) As Defendants acknowledge, “[w]here, as here, the respondent challenges the validity of the signature…the petitioner must establish by a preponderance of the evidence that the signature was authentic.” (Bannister v. Marinidence Opco, LLC, supra, 64 Cal.App.5th at page 544 [internal quotations omitted].) The Court does not find that Defendants have met this burden here.

In light of the foregoing, the Court does not find that Defendants have demonstrated that an arbitration agreement exists between the parties. Thus, the Court need not analyze Plaintiff’s arguments pertaining to unconscionability.  

Conclusion

Based on the foregoing, Defendants’ motion to compel arbitration is denied. 

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Plaintiff is ordered to provide notice of this Order.¿ 

DATED:  November 13, 2024                                  

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court