Judge: Theresa M. Traber, Case: 22STCV39723, Date: 2023-10-09 Tentative Ruling

Case Number: 22STCV39723    Hearing Date: October 9, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 9, 2023                     TRIAL DATE: NOT SET

CASE:                         Juddy Saenz v. Eurostar Inc.

CASE NO.:                 22STCV39723           

MOTION TO COMPEL ARBITRATION

MOVING PARTY:               Defendant Eurostar Inc.

RESPONDING PARTY(S): Plaintiff Juddy Saenz

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action under the Private Attorneys General Act (PAGA) filed on December 21, 2022. Plaintiff alleges that Defendant systematically failed to pay its employees minimum and overtime wages, wages upon termination, and meal and rest periods, and maintain accurate wage statements.

Defendant moves to compel Plaintiff’s individual claim to arbitration and stay or dismiss the representative claims.

TENTATIVE RULING:

            Defendant’s Motion to Compel Arbitration is DENIED.

DISCUSSION:

Defendant moves to compel Plaintiff’s individual claim to arbitration and stay or dismiss the representative claims.

Plaintiff’s Evidentiary Objections to the Declaration of Marie Lopez Mackay

            Plaintiff asserts several evidentiary objections to the declaration of Marie Lopez Mackay filed in support of the motion. The Court rules on these objections as follows:

            Objection No. 1: OVERRULED. This testimony is relevant as background information.

            Objection No. 2: OVERRULED. This testimony is relevant as background information and to establish deponent’s personal knowledge, if any, of matters to which she attests.

            Objection No. 3: OVERRULED. Does not lack foundation. Remaining objections are inapplicable as this testimony is offered as the basis for the declarant’s knowledge.

            Objection No. 4: OVERRULED. Does not lack foundation or personal knowledge. Remaining objections are inapplicable.

            Objection No. 5: SUSTAINED as to conclusion that Plaintiff was presented with and executed the Arbitration Agreement for lack of personal knowledge. The declarant’s position, duties, and familiarity with Defendant’s policy and practice do not allow her to opine on the specifics of Plaintiff’s review of the Arbitration Agreement or her alleged execution of it.   

            Objection No. 6: OVERRULED. Objections go to weight, not admissibility.

            Objection No. 7: SUSTAINED only as to the conclusion that the Agreement was executed by Plaintiff for lack of personal knowledge.

            Objection No. 8: SUSTAINED only as to the conclusion that the Agreement was executed by Plaintiff for lack of personal knowledge.

Plaintiff’s Evidentiary Objections to the Declaration of Ryan Patterson

            Plaintiff also objects to portions of the Declaration of Ryan Patterson in support of the motion. The Court rules on Plaintiff’s objections as follows:

            Objection No. 1: OVERRULED IN PART AND SUSTAINED IN PART. Does not lack foundation or personal knowledge, except as to whether the Arbitration Agreement was executed by Plaintiff, as to which the Objection is sustained. Remaining objections are inapplicable.

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 Mutual Agreement to Arbitrate Claims purportedly executed by Plaintiff on February 2, 2022. Plaintiff was hired as an Assistant Store Manager on January 14, 2022, and was terminated on August 26, 2022, some eight months later. (Declaration of Marie Lopez Mackay ISO Mot. ¶ 3.) Defendant contends that Plaintiff signed the agreement on or about February 2, 2022. (Id. ¶ 4, Exh. A.) The testimony of Defendant’s Senior Director of Human Resources, on which Defendant’s moving papers rely, bases this conclusion purely on the witness’s knowledge of Defendant’s policy and practice, not her personal knowledge of whether Plaintiff signed the Agreement. (Id. ¶ 4.) Ms. Mackay describes the responsibilities of her position in sufficient detail to lay a foundation for her description of Defendant’s business records. (Mackay Decl. ¶ 2; see Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 324.) However, her familiarity with Defendant’s business records and its policy and practices does not empower her to authenticate Plaintiff’s electronic signature.

It is undisputed that the agreement was signed using an electronic signature. (Id. ¶ 4, Exh. A. p.3.) 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 Mackay declaration offers no basis whatsoever for the conclusion that Plaintiff’s purported signature is authentic. Further, Plaintiff, in her opposition, categorically denies ever signing the Arbitration Agreement or even having been presented with the paperwork for review. Plaintiff contends that Defendant’s Store Manager filled out all of her employment documents on the Manager’s own computer which Plaintiff could not access, and that she was never informed of any arbitration agreement. (Declaration of Juddy Saenz ISO Opp. ¶ 2.)

Defendant attempts to remedy the failure to authenticate Plaintiff’s electronic signature in its reply briefing, offering declarations from Defendant’s Human Resources Information Systems Manager and from the Store Manager responsible for onboarding Plaintiff. However, as evidence submitted in reply, the Court has the discretion whether or not to consider this evidence. (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 did not place Plaintiff on adequate notice of the factual basis for the motion because it relied entirely on the insufficient statements of a single witness who lacked any personal knowledge about the key fact – whether Plaintiff executed the Arbitration Agreement -- and has thus deprived Plaintiff of an adequate opportunity to respond to the factual claims asserted in reply which should have initially been provided.

CONCLUSION:

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

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: October 9, 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.