Judge: Thomas D. Long, Case: 22STCV32521, Date: 2023-03-09 Tentative Ruling

Case Number: 22STCV32521    Hearing Date: March 9, 2023    Dept: 48






















      CASE NO.: 22STCV32521




Dept. 48

8:30 a.m.

March 9, 2023


On October 4, 2022, Plaintiff Maria Rodriguez De Paz filed this action against Defendants Hospitality Staffing Solutions LLC, and Kellermeyer Bergensons Services LLC (collectively, “Defendants”), alleging a single cause of action for civil penalties under the Private Attorneys General Act based on Labor Code violations.

On November 15, 2022, Defendants filed a motion to compel arbitration.


Defendants’ objections to the Declaration of Maria Rodriguez De Paz, attached to the Declaration of Bevin Allen Pike, are overruled.


When seeking to compel arbitration of a plaintiff’s claims, the defendant must allege the existence of an agreement to arbitrate.  (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.)  The burden then shifts to the plaintiff to prove the falsity of the agreement.  (Ibid.)  After the Court determines that an agreement to arbitrate exists, it then considers objections to its enforceability.  (Ibid.)

The Court must grant a petition to compel arbitration unless the defendant has waived the right to compel arbitration or if there are grounds to revoke the arbitration agreement.  (Ibid.; Code Civ. Proc., § 1281.2.)  Under California law and the Federal Arbitration Act (“FAA”), an arbitration agreement may be invalid based upon grounds applicable to any contract, including unconscionability, fraud, duress, and public policy.  (Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 165-166.)


Plaintiff was employed by Defendant Hospitality Staffing Solutions, LLC, of which Defendant Kellermeyer Bergensons Services, LLC is the parent company.  (Sisson Decl. ¶¶ 8-9.)  According to Plaintiff’s personnel records, she agreed to an arbitration agreement as a condition of her employment.  (Sisson Decl. ¶ 4.)  Defendants provide a copy of the arbitration agreement.  (Sisson Decl., Ex. A [“Arbitration Agreement”].)

Through the Arbitration Agreement, Plaintiff agreed to arbitrate, on an individual basis only, “any and all claims or disputes between you and the Company . . . and disputes arising out of or related to your employment with the Company, application for employment, termination of employment, and non-employment related matters.”  (Arbitration Agreement at ¶ 4; see id. at ¶¶ 1, 5.)  At the bottom of the Arbitration Agreement, a box is checked next to plain font that states, “Electronic Signature Accepted” on the signature line.  Below that, also in a plain font, is Plaintiff’s full name, the last four numbers of her social security number, and the employment start date.

Plaintiff argues that she did not electronically sign the Arbitration Agreement.  (Opposition at pp. 8-11.)  Plaintiff declares that she “was given a paper to fill out and was told it was for the drug test,” and she signed it.  (Rodriguez De Paz Decl. ¶ 3.)  According to Plaintiff, she was not given a computer tablet nor was asked to fill out any papers electronically.  (Rodriguez De Paz Decl. ¶ 4.)  She denies logging onto any other computer program; reviewing any documents other than the drug test; signing an I-9, W-4s, workplace safety rules, or the employee handbook acknowledgment; inserting any personal information into Avionte; scrolling through to the bottom of any agreement; or agreeing to affix her electronic signature to any document.  (Rodriguez De Paz Decl. ¶ 4.)  Although the declaration purports to attach a copy of the “only paper [she] was given,” no exhibits are actually attached to the declaration.  (Rodriguez De Paz Decl. ¶ 3.)

When a plaintiff does not recall signing or agreeing to an electronic agreement, the defendant has the burden of proving by a preponderance of the evidence that an electronic signature or acceptance is authentic, i.e., that it was the act of the plaintiff.  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.)  “[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.”  (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545 (Bannister).)

Defendants provide a declaration from Janet Sisson, a Human Resources Manager who has access to personnel records and is familiar with the onboarding process for new hires, including the practice of entering into arbitration agreements with employees and having employees sign arbitration agreements as a condition of employment.  (Sisson Decl. ¶¶ 2-3.)  She explains that Defendants onboard new employees through a proprietary software program called Avionte, which runs on company-provided tablet computers and personal computers used by the management team.  (Sisson Decl. ¶ 5.)  On the first day of employment, a manager meets with new employees to review and sign several onboarding documents, including the Arbitration Agreement.  (Sisson Decl. ¶ 5.)  Employees insert their personal information into Avionte via a company device and sign documents by agreeing to affix their electronic signature to each document.  (Sisson Decl. ¶ 5.)  In order to sign the Arbitration Agreement, an employee must scroll through to the bottom of the Agreement, enter their social security number, and execute their signature via the tablet’s touch screen.  (Sisson Decl. ¶ 6.)  Sisson declares that Plaintiff also electronically completed her Payroll Payment Request, W-4, and Employee’s Withholding Allowance Certificate, but no such exhibits are attached.  (Sisson Suppl. Decl. ¶ 6.)

Although Sisson explains the general onboarding policies, she does not establish that Plaintiff was the one who, in fact, electronically signed the Arbitration Agreement.  Plaintiff was not “assigned a unique, private user name and password such that she is the only person who could have accessed the onboarding portal and signed the agreement.”  (Bannister, supra, 64 Cal.App.5th at p. 547.)  Instead, she was assigned a unique login username and an initial password that is the same for all new employees.  (Sisson Suppl. Decl. ¶ 5.)  Only after using the same initial password is the employee prompted to create a new unique password for accessing the documents.  (Sisson Suppl. Decl. ¶ 5.)  Because the initial password was not unique to Plaintiff, it is possible that another employee or manager could have proceeded past that stage to complete the electronic paperwork on Plaintiff’s behalf.  Defendants do not explain any other security precautions for the electronic signature process.

Defendants also do not present evidence of any person present when Plaintiff signed the Arbitration Agreement.  Therefore, Plaintiff’s evidence that she was never given a computer tablet or electronic papers is uncontradicted.  Defendants’ attempt to distinguish Plaintiff’s declaration about her application and drug test from the subsequent onboarding process is unavailing.  (See Reply at p. 5, fn. 1.)  By Defendants’ own admission, the drug screening form that Plaintiff acknowledges was also completed on the first day of employment, the same day as the purported onboarding process.  (Ibid.; see Sisson Reply Decl. ¶ 4.)

When faced with the conflicting evidence that Plaintiff did not use a computer tablet or fill out any papers electronically (Rodriguez De Paz Decl. ¶ 4), Defendants’ evidence is insufficient to prove, by a preponderance of the evidence, that the electronic signature on the Arbitration Agreement is Plaintiff’s authentic signature.


The motion to compel arbitration is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.


         Dated this 9th day of March 2023





Hon. Thomas D. Long

Judge of the Superior Court