Judge Theresa M. Traber, Case Number: 22STCV39039, Date: 2023-08-18 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV39039, Date: 2023-08-18 Tentative Ruling

Case Number: 22STCV39039 Hearing Date: August 18, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 18, 2023 TRIAL DATE: NOT SET

CASE: Sehee Shin v. California Solar Integrators, Inc.

CASE NO.: 22STCV39039

MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendant California Solar Integrators, Inc.

RESPONDING PARTY(S): Plaintiff Sehee Shin

CASE HISTORY:

· 12/15/22: Complaint filed.

· 01/03/23: First Amended Complaint filed.

· 04/19/23: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination action. Plaintiff alleges that Defendant wrongfully terminated her because of her pregnancy.

Defendant moves to compel this matter to binding arbitration and stay this proceeding pending resolution of arbitration.

TENTATIVE RULING:

Defendant’s Motion to Compel Arbitration is DENIED.

DISCUSSION:

Defendant moves to compel this matter to binding arbitration and stay this proceeding pending resolution of arbitration.

Request for Judicial Notice

Defendant’s request that the Court take judicial notice of the Complaint in this action is GRANTED.

Plaintiff’s Evidentiary Objections

Plaintiff raises evidentiary objections to the Declarations of Dawn Willis and Jolynn M. Scharrer in support of this motion. The Court rules on these objections as follows:

Objection No. 1: OVERRULED. The witness’s job title is relevant to establishing a foundation for her testimony.

Objection No. 2: OVERRULED. These objections go to the weight of the statement, not its admissibility.

Objection No. 4: SUSTAINED for lack of foundation and personal knowledge. It is not apparent from the mere recitation of the witness’s job title what duties or responsibilities would impart her with knowledge of these facts. Ms. Willis’s bare statement of personal knowledge is not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d 741, 754.)

Objection No. 5: SUSTAINED for lack of foundation and personal knowledge. It is not apparent from the mere recitation of the witness’s job title what duties or responsibilities would impart her with knowledge of these facts. Ms. Willis’s bare statement of personal knowledge is not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d 741, 754.)

Objection No. 6: SUSTAINED for lack of foundation and personal knowledge. It is not apparent from the mere recitation of the witness’s job title what duties or responsibilities would impart her with knowledge of these facts. Ms. Willis’s bare statement of personal knowledge is not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d 741, 754.)

The Court declines to rule on the remainder of the objections because they pertain to evidence not relevant to the Court’s ruling.

Analysis

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendant seeks to compel arbitration based on a purported arbitration agreement electronically signed by Plaintiff on January 12, 2022. Defendant first attempted to introduce this agreement via the Declaration of Dawn Willis in support of this motion, and the relevant portions of that declaration are not admissible for the reasons stated above in connection with Plaintiff’s evidentiary objections. Defendant tries to cure these defects with a supplemental declaration accompanying the reply brief, explaining that Dawn Willis, as Defendant’s Controller, is responsible for managing the provision of documents, such as arbitration agreements, to employees for signing. (Supplemental Declaration of Dawn Willis ISO Reply ¶ 3.) This statement is sufficient to lay a foundation for Ms. Willis’s statements as to Defendant’s business records. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) However, because this is predicate evidence submitted for the first time in reply, the Court has the discretion whether to consider this declaration. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308.) The Court does not think it appropriate to do so here. Defendant’s motion does not place Plaintiff on adequate notice of the factual basis for the motion because it relies entirely on the unsupported statements of a single witness and has thus deprived Plaintiff of an adequate opportunity to respond to the factual claims asserted in reply which should have initially been provided.

Even if the Court were to consider the declarations of Dawn Willis and their contents, Defendant has not adequately demonstrated that Plaintiff signed the arbitration agreement. An electronic record or signature is attributable to a person if it was the act of the person. (Civ. Code § 1633.9(a).) The act of the person may be shown in any manner. (Id.) As described by the Court of Appeal, “the burden of authenticating an electronic signature is not great.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.)

Here, the arbitration agreement provided by Defendant in both declarations is a two-page document entitled “Dispute Resolution Procedure & Mutual Binding Arbitration Agreement,” which bears an electronic signature purportedly from Plaintiff dated January 12, 2022. (E.g. Willis Supp. Decl. Exh. 1.) Neither of Ms. Willis’s declarations offer any explanation for why the agreement was signed on January 11, 2022, despite the undisputed fact that Plaintiff was hired on April 12, 2021. (See, e.g., SAC ¶ 8.) Further, according to the supplemental declaration, the arbitration agreement was not sent by Ms. Willis, but by a Karla Lopez on January 11, 2022, so Ms. Willis apparently lacks personal knowledge for one of the centrally relevant facts. (Willis Supp. Decl. ¶ 5.) The apparent hearsay from Ms. Willis explains that the agreement was sent via DocuSign on January 11, 2022 to Plaintiff’s work email address, and that a signed agreement was received on January 12, 2022 with a date of signature and an ID number, along with a certificate of completion. (¶¶ 6-7.)

In addition to challenging the admissibility of Defendant’s evidence, Plaintiff opposes this motion on the basis that she never actually signed the arbitration agreement. Plaintiff states that she signed an employment agreement on March 28, 2021, and various other onboarding documents in April 2021. (Declaration of Sehee Shin ISO Opp. ¶ 3, 5.) According to Plaintiff, her custom, when signing these documents, was to do so electronically via a manual electronic signature with a copy saved for her records. (¶¶ 3, 5-6.) Plaintiff provides examples of these documents with electronic signatures, which bear some resemblance to her electronic signature on the Declaration itself. (Shin Decl. Exhs. 1-2.) These signatures are markedly different from the electronic signature provided with the arbitration agreement, which Plaintiff argues is an automatically-generated signature. (See Willis Supp. Decl. Exh. 1.) Plaintiff further states that she has no recollection of ever encountering the arbitration agreement prior to receiving this motion and does not possess a copy of it in her records. (Shin Decl. ¶¶ 6-7.) Plaintiff claims that Defendant’s CEO, Sean Neman, and her supervisor, Andrew Goldstone, had access to her work email during her employment, and thus, implicitly, they or another of Defendant’s employees accessed her work email to sign the document. (¶ 9.) Plaintiff provides emails forwarded to her from her work email by Mr. Goldstone after her termination in support of this contention. (Shin Decl. Exh. 3.)

In reply, Defendant contends that its supplemental evidence eliminates the possibility that any other person could have signed the agreement. Defendant claims that the IP address reported on the DocuSign Certificate of Completion is located in Irvine, California, which is also the location of Plaintiff’s home address, according to her personnel file. (Willis Supp. Decl. ¶¶ 8-9, Exh. 2.) Defendant offers no basis, however, for concluding that Ms. Willis is qualified to speak to the matter of identifying the location of an IP address. Further, the source of Ms. Willis’s claim is an unidentified “IP search website” with no explanation of the technology or methodology behind this tool, nor any other basis for the Court to deem this source to be trustworthy. (Willis Supp. Decl. ¶ 9.)

The Court notes that Defendant also offers declarations from both Mr. Neman and Mr. Goldstone affirmatively and categorically refuting the contention that either of them had access to Plaintiff’s work email before her termination. (See generally Supplemental Declarations of Andrew Goldstone and Sean Neman ISO Reply.) However, this evidence only serves to refute Plaintiff’s theories as to the person responsible for signing the arbitration agreement, which is ancillary to Plaintiff’s principal claim that she did not.

Taken as a whole, the Court finds that the Declarations of Dawn Willis are not credible for the purpose of establishing that Plaintiff signed the arbitration agreement. Defendant offers no explanation for the facially apparent differences in the form of signature from Plaintiff’s other employment documents, nor for supposedly presenting the agreement to Plaintiff eight months after she was hired. Defendant also does not adequately justify the conclusion that the agreement was supposedly signed at Plaintiff’s residence, when such a determination is not readily apparent from the Certificate of Completion.

Thus, for the foregoing reasons, Defendant has not demonstrated that a binding arbitration agreement exists between the parties.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Arbitration is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 18, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.