Opinion
B324218
04-29-2024
ABEL LEMUZ SANCHEZ, Plaintiff and Respondent, v. EVANS FOOD GROUP, LTD., Defendant and Appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff and Catherine L. Brackett for Defendant and Appellant. Aegis Law Firm, Samuel A. Wong, Jessica L. Campbell and Ali S. Carlsen for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 22STCV02207 Kenneth R. Freeman, Judge. Affirmed.
Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff and Catherine L. Brackett for Defendant and Appellant.
Aegis Law Firm, Samuel A. Wong, Jessica L. Campbell and Ali S. Carlsen for Plaintiff and Respondent.
EGERTON, J.
Abel Lemuz Sanchez filed a putative wage-and-hour class and representative action against his former employer Evans Food Group, Ltd. (Evans) after he resigned in early October 2021. Evans moved to compel arbitration of Sanchez's individual claims, asserting he electronically signed an agreement to arbitrate them when he reapplied for his position in late November 2021 through the company's website. Sanchez declared he had no recollection of completing a job application in November 2021 and attested he already had found a new job earlier that month. The trial court denied Evans's petition, finding it failed to establish the electronic signature was" 'the act of'" Sanchez, as required under the Uniform Electronic Transactions Act (UETA). (Civ. Code, § 1633.9.) Alternatively, the court found Evans could not retroactively enforce an arbitration agreement-signed after Sanchez's employment ended-in an application for prospective employment when there was no evidence Sanchez was rehired.
Statutory references are to the Civil Code, unless otherwise designated.
On appeal, Evans contends the trial court applied the wrong standard by requiring evidence of a unique login to authenticate Sanchez's electronic signature, failed to consider the circumstantial evidence that Sanchez electronically executed the agreement, and erred in finding the agreement did not apply retroactively. Substantial evidence supports the court's factual findings, and it did not apply an erroneous legal standard. We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
Evans, a Chicago-based company, is "a global producer of both pork pellets and branded, private-label packaged pork rinds." It serves distributors, retailers, and companies "strategically located across the world's markets." Sanchez worked for Evans as a "Route Sales Representative" from November 8, 2020 until October 7, 2021, when he voluntarily resigned.
In January 2022, Sanchez filed a wage and hour complaint against Evans alleging several causes of action on behalf of himself and a putative class of Evans's current and former nonexempt employees who were paid on a commission or piece rate basis since July 25, 2017. On July 1, 2022, Sanchez amended his complaint to add a claim for civil penalties under the Private Attorneys General Act of 2004 ("PAGA").
In August 2022, Evans moved to compel arbitration of Sanchez's individual claims, and to dismiss the class claims and the non-individual PAGA claim. Evans based its motion on an arbitration provision in a job application Sanchez purportedly submitted on November 24, 2021, through Evans's parent company's website, for his prior position. In support of the motion, Evans submitted the declaration of its Corporate Human Resources Manager, Amy Lott. Lott declared she was "familiar with the Company's standard hiring and onboarding procedures," including its "process for distributing certain company hiring documents and agreements to applicants and new employees." She also had "access to all of the Company's employee's [sic] personnel records indicating which document each employee ha[d] acknowledged and signed."
Lott attached to her declaration a copy of a completed job application with a multi-paragraph acknowledgement that included an arbitration agreement. Lott declared the document was a copy of "the Arbitration Agreement agreed to and signed electronically on November 24, 2021 by Abel Lemuz Sanchez." She averred Sanchez, on November 24, 2021, "re-applied to work for the Company [meaning, Evans] for the position of 'Route Sales Representative DSD' on the Company's website. At the time that [Sanchez] applied for re-employment on November 24, 2021, the Arbitration Agreement was contained in the Company's employment application."
The document is entitled "Route Sales Representative DSD Candidate." Below the title is the name "Abel Lemuz," followed by a phone number, email, and address. Below the name are sections entitled "Information," "Work History," "Education History," "Notes on Abel Lemuz," "Screener [RSR/DSD Driver]," and "Acknowledgment." Under the "Information" section, the applicant answered "Yes" to the question "Has Applied Before?" The response to "Has Worked Here Before?" reads "11/08/2020 -11/23/2021." Two jobs at different companies are listed under "Work History," and the applicant's high school and graduation date are noted under "Education History." The following notation appears under "Notes on Abel Lemuz": "11/24/2021 3:11:20 AM, System [¶] Applied for open Route Sales Representative DSD position 558682." The application also identifies "Inglish [sic] and Spanish" in response to "What language/(s) can you read and write fluently in?"
The phone number is listed as "(209) 654-9422," and the address as "1042 golden gate ave, Dos palos, CA 95380 [sic]."
The final section of the document is the "Acknowledgement," comprising 12 paragraphs with several agreements. The arbitration agreement appears in the eighth through eleventh paragraphs. The eighth paragraph states in substantial part, "I further expressly acknowledge and agree that, to the fullest extent allowed by law, any controversy, claim or dispute between me and the Company (and/or any of its owners, directors, officers, employees, affiliates, or agents) relating to or arising out of my employment or the cessation of that employment will be submitted to final and binding arbitration ...."
The ninth and tenth paragraphs of the acknowledgment contain further details about the arbitration agreement. The eleventh, penultimate paragraph reads, "BY AGREEING TO THIS BINDING MUTUAL ARBITRATION PROVISION, BOTH THE COMPANY AND I GIVE UP ALL RIGHTS TO A TRIAL BY JURY. This bi-lateral arbitration agreement is to be construed as broadly as is permissible under applicable law." The final paragraph contains an acknowledgement that the applicant has "read all of the above statements and that I understand them," as well as an integration clause.
Lott also explained the steps Sanchez would have taken to apply for the Route Sales position. He would have had to visit the webpage of Evans's parent company-Benestar Brands-and clicked on the job postings link on the careers page. The website would have redirected Sanchez to a third-party website called " 'Paylocity.com,'" where he would have clicked on the Route Sales position. A new webpage would have appeared with a "button" to" 'Apply'" for the position. Lott explained the application with "fillable text fields" then would have appeared. Sanchez would have clicked" 'Next Step'" to move through each page of the application. The third page would have displayed the information Sanchez had input and allowed him to edit it. Lott further explained, "At the bottom of the third page, there's an acknowledgment section that states: 'By submitting your application you hereby certify that the facts set forth in the above employment application are true and complete to the best of your knowledge,' and then goes on to state multiple agreements, one of them being the Arbitration Agreement."
Lott attested that, after Sanchez reviewed the arbitration agreement, he would have "pressed the 'I have read and accept the above acknowledgement' button, which is required. Lastly, [Sanchez] would have pressed the green submit button. At that point, [Sanchez] would have received an email confirmation that his application was successfully submitted, and the Company would receive his completed employment application with his executed Arbitration Agreement enclosed."
Sanchez opposed the motion, arguing Evans had failed to meet its burden to establish the existence of a valid agreement to arbitrate. Sanchez submitted his own declaration, signed on September 12, 2022, in support of his opposition. He declared, "At no point before, during, or even after my employment with the company do I recall agreeing to arbitrate my claims against it." He attested he had "no recollection of completing a job application for the Company in November 2021." Sanchez declared the phone number and address on the application attached to Lott's declaration were "wrong." He averred, "When I fill out a job application, I typically double check to ensure that at least my phone is correct so that a company could contact me if they were interested in interviewing me for a job." Sanchez also attested that, by November 24, 2021, he "already [had] found a new job and had been working that job since approximately November 8, 2021." He declared, "At that time, I had no intention of going back to work for the Company, nor . . . leaving my current job, so I would not have been applying for jobs with the Company."
There is no evidence Sanchez signed an arbitration agreement during-or as part of the application for-his November 2020 to October 2021 employment with Evans.
Evans objected to portions of Sanchez's declaration and his attorney's declaration (also filed in support of Sanchez's opposition). The court sustained Evans's objections in part. Our summary does not include evidence to which the court sustained an objection. Neither party challenges the court's evidentiary rulings.
Sanchez argued Evans failed to establish the application containing the arbitration provision "was an act of Plaintiff." He alternatively argued the agreement was unenforceable as Evans was a nonsignatory to the arbitration agreement, which purportedly was between Sanchez and Benestar Brands. Finally, Sanchez argued any purported agreement to arbitrate between him and Evans was voidable at his election as Evans had been listed as forfeited with the California Secretary of State since December 1, 2020 due to its failure to file California tax returns.
In reply, Evans argued-among other things-Sanchez never "outright assert[ed] that [he] did not submit the Arbitration Agreement" and "presented no evidence that he did not sign the Arbitration Agreement nor that the Arbitration Agreement was not submitted by him." Lott submitted a supplemental declaration stating she had reviewed the "executed Arbitration Agreement," which provided Sanchez's phone number as" '(209) 654-9422.'" She also had reviewed Sanchez's "onboarding documents" he completed on his first day of work. The phone number listed on a "New Employee/Change/ Emergency Contact" document dated October 28, 2020-which Lott attached to her declaration-is" '209-564-9422.'" Evans noted the only difference between the two phone numbers was the transposition of the 5 and 6-"an easy and plausible error for Plaintiff to have made." Evans further argued Sanchez had failed to address the fact the other "highly personal information"-his job history, education history, and languages spoken-"was presumably correct."
The court heard Evans's motion on October 5, 2022. It issued a tentative ruling, apparently denying the motion.Counsel argued the phone number was off by only one number and noted "most of us can easily make a clerical error like that." Counsel also argued Sanchez didn't explain how the address on the application was wrong. Counsel suggested it may have been a previous address or "not his address at the time." Counsel also argued that, under section 1633.9, Evans could demonstrate Sanchez's electronic signature was authentic "from the context and surrounding circumstances at the time of its creation," not only from security procedures. The "highly personal information" Sanchez "entered in the accompanying documents with the arbitration agreement," counsel argued, thus satisfied section 1633.9 and related case law.
The court's tentative ruling does not appear to be part of the appellate record.
Sanchez's counsel argued the circumstances surrounding the application showed-through Sanchez's declaration-that he had no intention of reapplying for his job, which "supposedly" happened six weeks after he quit, when he already had a new job. The court took the matter under submission.
On October 7, 2022, the court issued its ruling and order denying Evans's motion. The court found Evans failed to meet its burden under section 1633.9 to demonstrate the electronic signature was" 'the act of' Plaintiff Sanchez." In so finding- after first summarizing the Lott and Sanchez declarations- the court noted "nothing in the Lott Declaration addresse[d] the safeguards referenced in Ruiz." The court further explained, "There is nothing which discusses any unique login information or identification employees were required to use to view and sign the agreement. There is nothing which could lead the Court to conclude that only Plaintiff would have been able to electronically sign the agreement at issue. There is an inadequate explanation for how, or upon what basis, Ms. Lott inferred that the electronic signature on the Plaintiff's agreement was 'the act of' Plaintiff Sanchez. By itself, the Lott Declaration does not satisfy Defendant's burden. When read in context with Plaintiff's declaration, Defendant falls far short of its burden on the motion-especially given Plaintiff's statement, under penalty of perjury, that he had already found a new job by the time he allegedly completed the application on November 24, 2021."
Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 (Ruiz).
The court also considered Lott's supplemental declaration and concluded it did not "address[ ] the concerns expressed in Ruiz . . ., sufficient to find that Plaintiff signed the agreement under Civil Code § 1633.9(a)." The court also was "not persuaded by Defendant's argument that the Court [could] determine from the context and surrounding circumstances that the electronic signature is authentic." The court again explained "there [was] nothing within the Lott Declaration or anything else before the Court which specifically addresse[d] the requirements under § 1633.9 for authenticating an electronic signature."
As an apparent alternative basis for its order, the court also found Evans could not "retroactively seek to enforce an agreement to arbitrate, signed after the termination of Plaintiff's employment, in an employment application for subsequent prospective employment." In sum, the court ruled Evans had "not demonstrated, by a preponderance of the evidence, that an agreement to arbitrate exists with itself and Plaintiff Sanchez." Evans timely appealed. (Code Civ. Proc., §1294, subd. (a).)
DISCUSSION
1. Governing Principles a. Standards of review
When reviewing an order denying a motion to compel arbitration, our standard of review depends on the basis for the trial court's ruling. (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066 (Fabian).) If the ruling is based on a finding of fact, we apply the substantial evidence standard. If only a question of law is involved, our review is de novo. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 166 (Gamboa).)
"When, as here, the court's order denying a motion to compel arbitration is based on the court's finding that [the moving party] failed to carry its burden of proof, the question for the reviewing court is whether that finding is erroneous as a matter of law. [Citations.]' "Specifically, the question becomes whether appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" '" (Fabian, supra, 42 Cal.App.5th at pp. 1066-1067.) Moreover,"' "unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found the [party's] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence." '" (Id. at p. 1067.) We cannot substitute our factual determinations for those of the trial court and must view all factual matters most favorably to the prevailing party and in support of the judgment. (Ibid.)" '" 'All conflicts, therefore, must be resolved in favor of the respondent.'" '" (Ibid.)
b. Petitions to compel arbitration and authentication of an electronic signature
Both the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) and the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) "strongly favor arbitration." (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th22, 35.) Nevertheless, arbitration is a matter of contract and a party who has not agreed to arbitrate a controversy cannot be compelled to do so. (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.) Thus, when presented with a petition to compel arbitration, the trial court's first task is to determine whether an agreement to arbitrate the controversy exists. (Ibid.; Code Civ. Proc., § 1281.2 [requiring court to order arbitration "if it determines that an agreement to arbitrate the controversy exists"].)
The FAA applies to arbitration agreements involving interstate commerce. (9 U.S.C. § 2.) Sanchez does not dispute that the FAA applies here. But "[i]n determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) In California," '[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate,'" including the principles governing a party's acceptance of the agreement. (Ibid.)
The "party seeking arbitration bears the burden of proving the existence of an arbitration agreement." (Pinnacle, supra, 55 Cal.4th at p. 236.) To meet this burden, the moving party must first produce "prima facie evidence of a written agreement to arbitrate the controversy." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) If the opposing party presents evidence challenging the authenticity of the agreement, "the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party." (Gamboa, supra, 72 Cal.App.5th at pp. 165-166.) The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence to determine whether the parties agreed to arbitrate. (Ruiz, supra, 232 Cal.App.4th at pp. 841-842, citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)
Under the UETA, "an electronic signature has the same legal effect as a handwritten signature." (Ruiz, supra, 232 Cal.App.4th at p. 843; Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1061 (Espejo); see § 1633.7, subd. (a) ["A . . . signature may not be denied legal effect or enforceability solely because it is in electronic form."].) Like any writing, an electronic record "must be authenticated before the writing, or secondary evidence of its content, may be received in evidence." (Ruiz, at p. 843, citing Evid. Code, § 1401.) "[S]ection 1633.9 addresses how a proponent of an electronic signature may authenticate the signature-that is, show the signature is, in fact, the signature of the person the proponent claims it is." (Ruiz, supra, 232 Cal.App.4th at p. 843.) The statute states:
"An electronic record or electronic signature is attributable to a person if it was the act of the person. 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." (§ 1633.9, subd. (a), italics added; Ruiz, at p. 843; Espejo, supra, 246 Cal.App.4th at p. 1061.)
Thus, "the burden of authenticating an electronic signature is not great." (Ruiz, at p. 844.) "The party seeking authentication may carry its burden 'in any manner,' including by presenting evidence of the contents of the contract in question and the circumstances surrounding the contract's execution." (Fabian, supra, 42 Cal.App.5th at p. 1068, citing Ruiz, at p. 844; § 1633.9, subd. (b) ["effect of an . . . electronic signature . . . is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties' agreement"].)
If the party opposing arbitration is unable to recall making an electronic signature or denies having done so, then the party petitioning for arbitration bears "the burden of proving by a preponderance of the evidence that the electronic signature was authentic." (Ruiz, supra, 232 Cal.App.4th at p. 846, citing Evid. Code, § 1401; Espejo, supra, 246 Cal.App.4th at p. 1060.)
2. Sanchez sufficiently challenged the authenticity of the arbitration agreement
Sanchez does not dispute Evans met its initial burden by producing the application and acknowledgment of the arbitration agreement bearing the name "Abel Lemuz." (Espejo, supra, 246 Cal.App.4th at p. 1060 [defendants "met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing [plaintiff's] electronic signature"].) Sanchez thus had the burden to present evidence challenging the agreement's authenticity. He did so through his declaration. Sanchez declared, "[a]t no point before, during, or even after my employment with [Evans] do I recall agreeing to arbitrate my claims against it." Sanchez also attested he had "no recollection of completing a job application for [Evans] in November 2021." Finally, Sanchez averred that, as of November 24, 2021, he had no intention of leaving his current job-which he had begun around November 8, 2021-"so [he] would not have been applying for jobs" with Evans.
These statements under penalty of perjury were sufficient under California law to challenge the authenticity of the agreement and shift the burden to Evans to produce evidence establishing a valid arbitration agreement existed. (See Gamboa, supra, 72 Cal.App.5th at pp. 167-168 [employee's declaration that she did not recall the arbitration agreement, and would not have signed it if she had been aware of it, sufficiently challenged the agreement's authenticity]; ibid. ["[W]e need not decide whether Gamboa challenged the authenticity of her purported [handwritten] signature on the arbitration agreement. It was enough that she challenged the authenticity of the agreement by saying under penalty of perjury that she did not remember it[ ]" to shift the burden to the employer to show a valid agreement was formed.]; Ruiz, supra, 232 Cal.App.4th at pp. 840-841, 846 [employee's declaration that he did not recall electronically signing the arbitration agreement at issue-which purportedly was part of an acknowledgement form relating to the employee handbook-was sufficient to challenge its authenticity].)
Sanchez also declared he would not have agreed to arbitrate his claims "if given the option," but the court sustained Evans's objections to that statement.
Nevertheless, citing several unpublished federal district court cases, Evans contends Sanchez's declaration was insufficient as a matter of law to challenge the authenticity of the agreement because he did not outright deny having signed it or having reapplied for his job. We need not describe all of those nonbinding cases here. (See Nunez v. Nevell Group, Inc. (2019) 35 Cal.App.5th 838, 847-848 ["Federal decisional authority does not bind the California Courts of Appeal on matters of state law."].) In any event, as Sanchez notes, in most of the cases Evans cites, the plaintiff's or plaintiffs' attested lack of recall was sufficient to shift the burden of production to the defendant, but the defendant produced sufficient evidence to persuade the court the electronic signature was the act of the plaintiff(s). (See, e.g., Tagliabue v. J.C. Penney Corporation, Inc. (E.D.Cal. Dec. 15, 2015, No. 1:15-cv-01443-SAB) 2015 WL 8780577.)
Other cases are distinguishable. For example, in Hall v. FedEx Freight, Inc. (E.D.Cal. July 11, 2014, No. 1:13-cv-01711-SKO) 2014 WL 3401386, the district court granted an employer's motion for summary judgment on the ground plaintiffs' claims were time-barred based on their agreement to a shortened statute of limitations period when they signed their employment applications. (Id. at **1, 4, 7.) There, one plaintiff acknowledged his handwritten signature on the application, another confirmed his electronic signature was affixed to it, and the third conceded that, "since he had filled out so many documents, he did not know what he completed and what he did not." (Id. at *7 &fn. 3.) Plaintiffs thus failed to raise a triable issue of fact as to that agreement. (Id. at *9.) Similarly, in Blau v. AT &T Mobility (N.D.Cal. Jan. 3, 2012, No. C 11-00541 CRB) 2012 WL 10546, one plaintiff did not dispute his authorized user had electronically signed the defendant's terms of service-containing the arbitration agreement-and the other plaintiffs did not dispute they had entered agreements for defendant's service. (Id. at *3 &fn. 5.) Finally, in Dhaliwal v. Ace Hardware Corporation (E.D.Cal. Mar. 17, 2023, No. 2:22-cv-00446-DAD-KJN) 2023 WL 2555471-as Sanchez notes-although the district court found the employee's declaration that he did not recall signing the arbitration agreement insufficient to challenge its validity, the employer there had presented evidence establishing the electronic signature was the act of the employee, as he could have signed the agreement only by logging into the employer's system with a password known only to him. (Id. at **4-5.)
Evans's reliance on Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747 for this proposition also is misplaced. There, an employer had moved to compel arbitration of the plaintiffs' claims based on copies of arbitration agreements bearing their handwritten signatures. (Id. at p. 751.) In reversing the order denying the employer's motion, the reviewing court noted the plaintiffs did not deny having signed the agreement or claim their physical signatures were forged or inauthentic. (Id. at p. 756.) There, however, the plaintiffs admitted they had signed a stack of documents at the employer's behest and the signatures on the arbitration agreements were theirs. (Id. at pp. 753, 756.) Each plaintiff further declared," 'I do not recall ever reading or signing any document entitled Binding Arbitration Agreement .... I do not know how my signature was placed on [the document].'" (Id. at p. 756, italics added.) In light of plaintiffs' admissions that the signatures were theirs, the court concluded their declarations did "not create a factual dispute" as to whether they had signed the agreement. (Ibid.) Sanchez made no such admission here.
Accordingly, Sanchez presented sufficient evidence challenging the arbitration agreement to shift the burden back to Evans to produce evidence establishing the electronic "signature" on the arbitration agreement was authentic. (Ruiz, supra, 232 Cal.App.4th at p. 846; Espejo, supra, 246 Cal.App.4th at p. 1060.)
3. The court did not err in finding Evans failed to prove the electronic "signature" was the act of Sanchez
Evans contends the court also erred as matter of law in finding Evans failed to prove Sanchez electronically "signed" the arbitration agreement. Evans argues the court contravened the standard set forth in section 1633.9, and the case law the court cited, by "imposing . . . a blanket requirement" that an electronic agreement can be authenticated only upon a showing of the use of "a unique login procedure." We disagree with Evans's interpretation of the court's ruling.
We begin with Ruiz, supra, 232 Cal.App.4th 836-the case on which the court relied and discussed at length in finding Evans failed to meet its burden under section 1633.9. There, the reviewing court affirmed the denial of an employer's motion to compel arbitration on the ground the employer did not meet its burden of authenticating the employee's purported electronic signature on an arbitration agreement. (Ruiz, at p. 838.) Initially, the employer produced a copy of the agreement bearing an electronic signature in its employee Ruiz's name with a date and time stamp for the signature, as well as its business manager's declaration, who summarily declared Ruiz was the person who electronically signed the agreement. (Id. at pp. 839840, 843.) After Ruiz attested he "did not recall" electronically signing the agreement, the business manager offered a reply declaration explaining the arbitration agreement was part of an employee acknowledgment form the employer presented to all of its employees in connection with changes to the employee handbook. (Id. at p. 844.) Each employee was required to log into the company's HR system, using his or her" 'unique login ID and password,'" to review and sign the acknowledgment form. (Ibid.) The business manager, however, "did not explain how, or upon what basis, she inferred that the electronic signature on the . . . agreement was 'the act of' Ruiz." (Ibid.) The Ruiz court held this omission "left a critical gap in the evidence supporting the petition" that rendered it "insufficient to support a finding that the electronic signature was, in fact, 'the act of' Ruiz." (Ibid.)
About a year later, in Espejo, supra, 246 Cal.App.4th 1047, our colleagues in Division Four followed the court's reasoning in Ruiz to reverse a trial court's finding that the employer failed to authenticate the employee's purported electronic signature on an arbitration agreement. (Id. at pp. 1050-1051, 1062.) Distinguishing the facts of Ruiz, the Espejo court determined a supplemental declaration by the employer's systems consultant "offered the critical factual connection that the declarations in Ruiz lacked." (Espejo, at pp. 1050-1051, 1062.) There, the systems consultant "detailed [the employer'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 [arbitration agreement]. Based on th[at] procedure, she concluded that the 'name Jay Baniaga Espejo could have only been placed on the signature pages of the employment agreement and the [arbitration agreement] by someone using Dr. Espejo's unique user name and password.'" (Id. at p. 1062.) Notwithstanding the employee's assertion that he "did not recall ever signing" the arbitration agreement (id. at p. 1054), the Espejo court held the details in the system consultant's declaration "satisfactorily m[e]t the requirements articulated in Ruiz and establish[ed] that the electronic signature on the [arbitration agreement] was 'the act of' Espejo." (Id. at p. 1062.)
The trial court here referred to Espejo but did not discuss the case.
The court here, in considering whether Lott's declaration "establishe[d] that Plaintiff Sanchez, in fact, signed the arbitration agreement at issue," specifically noted Lott did not state an applicant was required to use a unique login or other identifier to access and sign the agreement-she did not "address[ ] the safeguards referenced in Ruiz." Evans reads this assessment as the court having "insist[ed] that the only way" Evans could authenticate the electronic arbitration agreement was "to show that [Sanchez] used unique login information" to access and submit it. Evans thus argues, "because the trial court incorrectly believed an electronic signature could not be authenticated without unique login procedures, it failed to consider Evans's other evidence that Plaintiff executed the agreement."
In our view, the court's accurate observation-that there was no evidence an applicant like Sanchez would have had to use a unique login or identifier to view and agree to the arbitration provision-does not suggest the court interpreted the UETA to require evidence of a unique identifier to authenticate an electronic document. Contrary to Evans's apparent contentions, the court neither based its ruling on the absence of security protocols alone nor ignored the evidence Evans presented. Rather, relying on Ruiz, the court specifically found Lott did not otherwise explain how she inferred the "electronic signature" on the agreement was" 'the act of'" Sanchez, as required under the UETA. (§ 1633.9, subd. (a).) In other words, Lott's declarations did not provide the "necessary factual details to properly authenticate" (Espejo, supra, 246 Cal.App.4th at p. 1062) the electronic arbitration agreement, as discussed in Ruiz and found to be present in Espejo.
In contrast to the agreements in Ruiz and Espejo, here there was no signature line or space following the acknowledgement form where the applicant had to type his or her name or affix an electronic signature. (Ruiz, supra, 232 Cal.App.4th at p. 840; Espejo, supra, 246 Cal.App.4th at p. 1054.) Nor did Lott describe the existence of an electronic signature page for the applicant to complete. Rather, according to Lott, the applicant only had to click a "button" stating he or she had" 'read and accept[ed] the above acknowledgement' "-which included the arbitration provision-before he or she could submit the online application.
The record supports the court's finding. Lott did describe the process Sanchez would have had to use to complete the application electronically and "execute" the arbitration agreement, in contrast to the manager in Ruiz. Yet, just as the manager in that case failed to state the basis on which she inferred the electronic signature was the act of the employee, Lott never explained how she inferred it was Sanchez who took the steps she described.
True, as Evans repeatedly asserts, "[t]he act of the person may be shown in any manner." (§ 1633.9, subd. (a); see also Ruiz, supra, 232 Cal.App.4th at pp. 843-845.) But the UETA also specifically states an electronic signature may be authenticated through "a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable." (§ 1633.9, subd. (a); see also Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545 ["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"], cited by the trial court.) As Lott failed to explain how she concluded only Sanchez could have entered the information on the online form-and thereby agreed to the arbitration provision-the court's emphasis on the lack of a unique login procedure, or use of other safeguard to verify it was Sanchez's electronic "signature," was not unreasonable and did not contravene the UETA.
Evans nevertheless argues the court failed to "examine the validity of [the] circumstantial evidence" it presented "in authenticating either an electronic or a handwritten agreement"-namely: (1) the agreement itself "bearing Plaintiff's signature and the unique personal information Plaintiff entered into the online form," and (2) Lott's explanation of "the process Plaintiff would have utilized to electronically complete that form and execute the agreement." Contrary to Evans's contention, the court expressly addressed the evidence both Evans and Sanchez presented.
There is no evidence Sanchez ever handwrote his signature on an agreement to arbitrate nor does Evans contend that he did.
Indeed, the court specifically considered the context and circumstances surrounding Sanchez's purported submission of the application-in accordance with the UETA. (§ 1633.9, subd. (b).) The court, however, was not persuaded the context and surrounding circumstances here demonstrated the electronic signature was authentic, as Evans had argued. In concluding Evans fell "far short of its burden," the court specifically credited Sanchez's "statement, under penalty of perjury," that he already had found a new job by the time he allegedly completed the application. We can infer the court equally credited Sanchez's declaration that-as he had no intention of leaving the job he had begun on November 8, 2021-he would not have been applying for a job with Evans two weeks later. The court thus found the Lott declaration, "read in context with [Sanchez's] declaration," failed to satisfy Evans's burden. As Sanchez's testimony is not incredible or inherently improbable on its face, we defer to the court's express and implied finding that his declaration was credible. (See Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 ["a trial court's credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable"].)
Evans seems to contend Lott's description of the steps Sanchez would have had to take to submit the application- and the personal information contained in it-demonstrated as a matter of law that the electronic agreement was the act of Sanchez, noting he never denied taking those steps, reapplying for his position, or electronically "execut[ing]" the agreement. We agree an electronic record "can be authenticated by circumstantial evidence and by its contents." (Ruiz, supra, 232 Cal.App.4th at p. 845, citing People v. Skiles (2011) 51 Cal.4th 1178, 1187.) Evans's evidence of authenticity, however, was neither uncontradicted nor of such character and weight as to compel a finding that it was sufficient to demonstrate the electronic execution of the agreement was the act of Sanchez. (Fabian, supra, 42 Cal.App.5th at pp. 1067, 1070.)
First, Sanchez contradicted Lott's declaration by averring he did "not recall completing a job application" for Evans in November 2021. He also attested the phone number and address attributed to him on the application were "wrong." While Evans concedes the phone number on the application had two digits transposed when compared to the number Sanchez provided in the onboarding document Lott produced, it attributes the incorrect phone number to a clerical error. As the court credited other parts of Sanchez's declaration, we can infer it also credited his statement that, when filling out a job application, he typically "double check[s] to ensure" at least his telephone number is correct so the prospective employer can contact him. (Fabian, supra, 42 Cal.App.5th at p. 1067 [reviewing court has no power to judge the credibility of witnesses or reweigh the evidence].) Lott declared she reviewed the documents Sanchez completed for Evans on his first day of work, and "the Arbitration Agreement Plaintiff signed." She noted the inconsistency between the phone number listed in the agreement and in the onboarding document. As the court found, however, Lott's access to employee personnel records, and her review of Sanchez's records, did not "address[ ] the concerns expressed in Ruiz."
As for the address listed on the application, at the hearing Evans's counsel argued Sanchez did not explain "how the address [was] wrong" and hypothesized it could have been "a previous address or not his address at the time." The October 28, 2020 onboarding document and Sanchez's last direct deposit pay stub from Evans, dated October 12, 2021, list identical addresses in Turlock, CA 95380. Yet, the November 24, 2021 application at issue lists Sanchez's address as "1042 golden gate ave, Dos palos, CA 95380." We can infer the court did not credit Evans's hypothetical explanation for that discrepancy. As if that were not enough, the application also incorrectly states Sanchez's last date of employment with Evans was on November 23, 2021- the day before the application was submitted. It is undisputed Sanchez left Evans's employ on October 7, 2021.
Crediting Sanchez's declaration, as we must-and considering Lott's declaration that Sanchez would have had an opportunity to edit any of the information he had provided in the application-the court reasonably could have inferred Sanchez would not have made, or at least would have corrected, these errors had he been the one to submit the application. At a minimum, the discrepancies in the application substantially support the court's finding that Evans's evidence failed to persuade it that only Sanchez could have submitted the application. The information in the application certainly does not compel a finding that the electronic execution of the arbitration agreement was more likely than not the act of Sanchez.
Evans asserts "[t]he record suggests Plaintiff was not asked for, and did not provide," his work history and educational background "in his initial onboarding materials with Evans," referring to the document Lott produced. Evans seems to contend the court should have considered that information as circumstantial evidence of the agreement's authenticity, arguing only Sanchez would have been expected to know it. Although Sanchez's background information was not included in the one "onboarding document" Lott attached to her supplemental declaration, the court equally could infer that, in applying for his job with Evans in November 2020, Sanchez would have been asked for similar background information. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 ["[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court."].) In any event, Lott did not declare she reviewed Sanchez's application for the November 2020 job, only that she reviewed the "onboarding documents that [he] completed on his first day of work." (Italics added.) We thus cannot conclude the application's inclusion of Sanchez's personal information demonstrated the arbitration agreement was the act of Sanchez under section 1633.9 as a matter of law.
In sum, although Evans's burden was not a high one, reading the Lott declarations in connection with the Sanchez declaration, and considering the discrepancies in the information provided in the application, we conclude Evans's evidence did not compel a finding that the electronically submitted application and arbitration agreement was more likely than not the act of Sanchez. The trial court thus did not err in denying Evans's motion to compel arbitration based on its failure to prove, by a preponderance of the evidence, that Sanchez electronically "signed"' the arbitration agreement. Accordingly, we need not address the court's alternative basis for its order, or Evans's other claims of error.
DISPOSITION
The order denying Evans Food Group, Ltd.'s petition to compel arbitration is affirmed. Plaintiff Abel Lemuz Sanchez is entitled to his costs.
We concur: EDMON, P. J. LAVIN, J.