Michelle Wallace vs. Advantage Sales & Marketing, LLC

Opposition

Cal. Super. - 4th Dist.October 7, 2016

S E C R E S T 21 5 A, C A 9 3 1 0 1 62 9 S T A T E S T R E E T , S U I T E A P R O F E S S I O N A L C O R P O R A T I O N L A W O F F I C E S O F D A V I D S. |] Ut 6 10 11 13 14 16 17 18 19 Law Offices of David S. Secrest, P.C. David S. Secrest, Esq. [SBN #142299] 629 State Street, Suite 215 ELECTRONICALLY FILED Santa Barbara, CA 93101 Superior Court of Califomia, Tel: 805-770-2660 County of Orange Fax: 805-845-5457 12/02/2016 at 07:06:00 Ph Attorney for Plaintiff Clerk of the Superior Court Michelle Wallace Erk of the atpenar oul By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MICHELLE WALLACE, Case No. 30-2016-00879624-CU-WT-CJC Co [Unlimited Jurisdiction] Plaintiff, Assigned for all purposes to the Honorable Mary Fingal Schulte, Dept. C21 Vs. PLAINTIFF MICHELLE WALLACE’S ADVANTAGE SALES & MARKETING, | MEMORANDUM OF POINTS AND LLC; DEAN KAYE; CLARE BOGLE; AUTHORITIES IN SUPPORT OF TIM JONES; and DOES 1-20, inclusive, OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND REQUEST Defendants. FOR DISMISSAL PENDING ARBITRATION DATE: December 15, 2016 TIME: 1:30 pm DEPT: C21 Reservation No.: 72479294 Complaint Filed: October 7,2016 Trial Date: None 0 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T i e i 0 & < © << [a4 & < 57 F A C S I M I L E 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E 8 0 5 - 8 4 5 - 5 4 n - aN 2 = = r = n = = = = = ~~ *1 = n a = < = n XH NN a S A N T A B A L Z © = H « ~ o & & © = « Z o = 0 hn = = < & ~ « L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 I. FACTS A. Pertinent Background In July 2013, Plaintiff was hired as a Divisional Controller for defendant ADVANTAGE SALES & MARKETING (“ASM”). Decl. of Michelle Wallace, served and filed herewith, para. 2 (“Wallace Decl.,§ 27). Plaintiff’s job duties included Annual financial statements, budgeting, working with 50 customer groups in their financials, reconciling balance sheets, overseeing two other employees, review and approving invoices. Id. In Plaintiff’s role as Divisional Controller, she reported to three different people: Tim Jones, ASM Finance Director (who departed October, 2014); thereafter, Dean Kaye, ASM Exec. VP; and Claire Bogle, ASM Finance Director, to whom Plaintiff was supposed to report beginning in January 2015. Wallace Decl., § 3. ASM Finance Director Tim Jones, and ASM Exec. Wallace Decl., J 4. VP Dean Kaye reported directly to Brian Stevens, ASM CFO. Wallace Decl., 4 4. Id. Each segment of ASM business has a Divisional Controller. Wallace Decl.,§ 5. Plaintiff was grocery; Gary Evans was ASM Divisional Controller of several other segments; Aaron Tavrenier was ASM Divisional Controller government contracts. Id. B. The “Mutual Agreement To Arbitrate Claims” Plaintiff has reviewed the “Mutual Agreement To Arbitrate Claims” (“Agreement to Arbitrate”) attached to the moving papers, Declaration of Willis Preston dated November 9, 2016 (Exhibit “A””). Wallace Decl., J 6. Plaintiff has never seen the Agreement to Arbitrate before receiving this motion, and did not see, review or access that document when Plaintiff applied for employment with defendant ADVANTAGE SALES & MARKETING (“ASM”) in July 2013. Wallace Decl.,§ 7. As such, Plaintiff did not agree to arbitrate the claims presented in this case. Wallace Decl., § 8. Turning to the Declaration of Willis Preston dated November 9, 2016, Para. 6, Mr. Preston states: Once an applicant/employee creates his or her own unique password, nothing in ASM's system shares that password with anyone. The password cannot be manually retrieved from the system by anyone. ASM designed and developed the system and internal security protocols to ensure each user's individual password security. Only the employee user will know his/her password. If a worksite employee forgets his/her password, ASM has no way to retrieve it. The only thing ASM can do is manually "re-set" that user's online portal account to allow him/her to create a new password, just as if he/she were a new user. Furthermore, ASM's security protocols do not permit anyone other than a user with the correct password to enter a 1 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T F A C S I M I L E 62 9 S T A T E S T R E E T , S U I T E 21 5 8 0 5 - 8 4 5 - 5 4 : A P R O F E S S I O N A L C O R P O R A T I O N L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 worksite employee's individual online portal account. Wallace Decl., § 9; Declaration of Willis Preston, Para. 6. These statements are false and/or misleading. Wallace Decl., § 10. C. Defendants’ Assertions About The “Mutual Agreement To Arbitrate Claims” Are Untrue, Based on Undisputed Evidence First of all, Plaintiff’s password was provided to Plaintiff by Susie Orendain, ASM HR Department (“Executive Search Partner”). Wallace Decl.,§ 11. Ms. Orendain requested the HR Department forward Plaintiff’s user name and password to complete on-boarding documents. Wallace Decl., J 11. Both Susie Orendain and Daniel Simmons, ASM HR Department, had access to the HR System, Plaintiff’s user id, and Plaintiff’s password. Wallace Decl., § 12. Attached to Plaintiff’s declaration as Exhibit “1” is an email received from Susie Orendain, ASM HR Department, on July 3,2013 at 11:39 AM, in which she advises Plaintiff to “go through our formal process in order to be considered for employment with” ASM, providing a link to click on. Wallace Decl., § 13. Plaintiff responded to this email by replying to Ms. Orendain on July 3, 2013 at 6:36 AM. 1d. Plaintiff followed up on this email on July 4, 2013 at 5:50 PM, advising Ms. Orendain that Plaintiff had questions about the application process, and left several fields blank or “open,” asking Ms. Orendain if she wanted Plaintiff to complete the “fields I've left open...” Wallace Decl., 9 14, Exhibit “1.” On July 8,2013 at 7:36 AM, Ms. Orendain responded to Plaintiff’s email, at the top of the page, by stating; “Your application is fine. I'll proceed to the next steps. Thank you.” Wallace Decl., YJ 15. Attached to Plaintiff’s declaration as Exhibit ¢2”° is an email Plaintiff received from ASM HR Department, onboarding@asmnet.com July 8, 2013 at 1:16 PM, in which Plaintiff was informed, again, of her username and password to complete ASM’s “on-boarding portal documentation.” Wallace Decl., § 16. Attached to Plaintiff’s declaration as Exhibit ¢3” is an email Plaintiff received on July 8, 2013 at 3:43 PM from “First Advantage Reporting Service,” which was copied to Daniel Simmons, ASM HR Department, pertaining to drug testing. Wallace Decl., J 17. Mr. Simmons replied directly to Plaintiff at 3:48 PM on July 8, 2013, instructing Plaintiff to disregard the email. 1d. In response, 2 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T F A C S I M I L E 62 9 S T A T E S T R E E T , S U I T E 21 5 8 0 5 - 8 4 5 - 5 4 : A P R O F E S S I O N A L C O R P O R A T I O N L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 Plaintiff followed up with a further email to Mr. Simmons on July 8, 2013 at 6:52 PM. Id. On July 9, 2013, at 9:57 AM, Mr. Simmons responded again, instructing Plaintiff that she did not need to complete the drug test. Id. ASM’s HR Department and the Finance Department were overseen and managed by Brian Stevens, CFO. Wallace Decl., YJ 18. Throughout Plaintiff’s application and on-boarding process, ASM’s HR personnel was in constant review and monitoring of Plaintiff’s application and on-boarding process. See, e.g., Exhibit ¢2,” Wallace Decl., 9 20. ASM’s HR personnel transmitted to Plaintiff emails as she progressed through the process. See Exhibits “1” - “3,” attached hereto. As such, ASM’s HR Department had access to Plaintiff’s user ID and password, and upon request forwarded the information to Plaintiff directly, and had the ability to revise Plaintiff’s application and on-boarding application. As another example, ASM’s HR Department revised Plaintiff’s on-boarding documentation for drug testing, eliminating the standard drug test required for all employees. See Exhibit ¢“3,” Wallace Decl., J 21. D. ASM Management Was Directed To Override ASM Corporate Policy As Needed To Limit Losses In November 2013, on several occasions, Plaintiff was informed directly by her colleagues, Divisional Controllers Gary Evans and Aaron Tavrenier, that due to high turnover in ASM’s Finance Department and other “personnel issues,” CFO Stevens directed ASM management to override ASM corporate policy as needed To Limit Losses To ASM, And Reduce Overall Costs. Wallace Decl., § 19. E. ASM’s HR Department Used Plaintiff’s User ID And Password To Override ASM’s HR System Requirements Even After Plaintiff’s Termination Even after Plaintiff’s termination from ASM on March 23,2015, ASM’s HR Department used Plaintiff’s user ID and password to override the ASM’s HR system requirements after March 23, 2015, to revise Plaintiff’s 2014 Annual Evaluation documentation. Wallace Decl., § 22. Plaintiff completed her annual self-review for 2014, submitting it to ASM’s HR database by use of Plaintiff’s user ID and password, on January 18,2015. Wallace Decl., § 23. Attached as Exhibit “4” is a copy of the email from ASM’s HR database, dated January 14, 2015, indicating Plaintiff’s self-review must be completed by January 18,2015, providing information to access my 3 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T F A C S I M I L E 62 9 S T A T E S T R E E T , S U I T E 21 5 8 0 5 - 8 4 5 - 5 4 : A P R O F E S S I O N A L C O R P O R A T I O N L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 performance review, and advising Plaintiff that she would be unable to complete her self-review or access it after that date. Wallace Decl., § 23. The second page of Exhibit “4” is a copy of a screenshot indicating Plaintiff completed my self-review on January 18,2015. Id. Attached as Exhibit “5” is a copy of Plaintiff's computer calendar entry at work, indicating her annual review was to be completed by Dean Kaye and Clare Bogle on March 26,2015. Wallace Decl., § 24. Plaintiff was terminated on March 23, 2015. Id. Therefore, Plaintiff’s annual review was never completed prior to my termination. Id. Had it been completed prior Plaintiff’s termination, Plaintiff would have been advised of such by ASM’s HR database, by email, as described above. Id. Plaintiff never received such an email prior to her termination on March 23,2015. Id. After Plaintiff’s termination, Plaintiff requested a copy of her personnel file. Within that personnel file was Plaintiff’s annual review, completed by ASM’s HR Dept. Exhibit “6,” Wallace Decl., 9 25. This document was submitted to Plaintiff’s personnel file without Plaintiff’s knowledge, and with the Company’s HR Department using Plaintiff’s credentials to falsely input Plaintiff’s electronic signature subsequent to Plaintiff’s departure by ASM. Id. F. Plaintiff Never Saw, Nor Consented To, The Agreement To Arbitrate That Is The Subject Of This Motion, And Plaintiff Does Not Consent To Arbitrate The Claims Made In This Lawsuit To reiterate: Plaintiff never saw, nor consented to, the Agreement to Arbitrate that is the subject of this motion. Wallace Decl.,§ 26. Rather, that document was completed on July 8, 2013, using Plaintiff’s electronic signature, user ID and password, which was in the possession of ASM’s HR Department on July 4, 2013. Id. For these reasons, Plaintiff does not consent to arbitrate the claims made in this lawsuit. Wallace Decl., J 27. Plaintiff did not consent to arbitrate the claims made in this lawsuit. Id. Plaintiff did not participate in any agreement to arbitrate the claims made in this lawsuit. Id. II. ARGUMENT A. Defendants have Failed To Meet Their Evidentiary Burden - Preponderance Of The Evidence- That An Arbitration Agreement In Fact Exists Between ASM And Plaintiff Under Cal. Code Civ. Proc., § 1281.2 Cal. Code of Civ. Proc. § 1281.2 requires a court to order arbitration “if it determines that an agreement to arbitrate ... exists..." (§ 1281.2.)” Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal. App.4th 836, 841-42; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group 4 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T i e i 0 & < © << [a4 & < 57 F A C S I M I L E 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E 8 0 5 - 8 4 5 - 5 4 n - aN 2 = = r = n = = = = = ~~ *1 = n a = < = n XH NN a S A N T A B A L Z © = H « ~ o & & © = « Z o = 0 hn = = < & ~ « L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 (2011) 197 Cal.App.4th 1146, 1153. Sections 1281.2 and 1290.2 create a summary proceeding for resolving petitions to compel arbitration. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal .4th 394, 413. The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Ruiz v. Moss Bros. Auto Group, Inc., supra, at p. 842; Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal .4th 223,236. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination. Engalla v. Permanente Medical Group, Inc., supra, at p. 972. In Ruiz v. Moss Bros. Auto Group, Inc., supra, at p. 842, the court found that the employer “failed to establish that an arbitration agreement in fact exists” between the employer and the employee, pursuant to the provisions of Cal. Code of Civ. Proc. § 1281.2. Specifically, the Court of Appeal found the trial court was correct in ruling that the employer “did not prove by a preponderance of the evidence that Ruiz was the person who electronically signed the... agreement.” Id. Indeed, based on our de novo review of the undisputed evidence in the record on appeal, we independently conclude Moss Bros. did not present sufficient evidence to support a finding that the electronic signature on the 2011 agreement was the act of Ruiz. (Evid. Code, § 1400, cl. (a); Civ. Code, § 1633.9, subd. (a); Pinnacle Museum, supra, 55 Cal .4th at p. 236, 145 Cal Rptr.3d 514, 282 P.3d 1217 [when the evidence is not in conflict the order denying arbitration is reviewed de novo].) Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal. App.4th 836, 842. In Ruiz v. Moss Bros. Auto Group, Inc., supra, the court laid out the general principles that apply here: “In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate,” ” and the party seeking arbitration bears the burden of proving the existence of an arbitration agreement. (Pinnacle Museum, supra, 55 Cal.4th at p. 236, 145 Cal.Rptr.3d 514,282 P.3d 1217.) Here, Moss Bros. sought to compel arbitration based solely on the written 2011 agreement, *843 which it claimed Ruiz electronically signed.’ Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq.; Stats. 1999, ch. 428, § 1, pp. 2809-2816), an 5 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T i e i 0 & < © << [a4 & < 57 F A C S I M I L E 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E 8 0 5 - 8 4 5 - 5 4 n - aN 2 = = r = n = = = = = ~~ *1 = n a = < B= n XH NN a S A N T A B A L Z © = H « ~ o & & © = « Z o = 0 hn = = < & ~ « L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 electronic signature has the same legal effect as a handwritten signature (Civ. Code, § 1633.7, subd. (a) [“A ... signature may not be denied legal effect or enforceability solely because it is in electronic form.”]). Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842-43. Still, any writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence. (Evid. Code, § 1401; People v. Valdez (2011) 201 Cal. App.4th 1429, 1435, [135 Cal.Rptr.3d 628]; People v. Goldsmith (2014) 59 Cal.4th 258, 271, [172 Cal Rptr.3d 637, 326 P.3d 239].) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400, italics added; People v. Valdez, supra, at p. 1435, 135 Cal.Rptr.3d 628 [proponent meets its burden of producing evidence to show authenticity of writing “ ‘when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.” ”’]; People v. Skiles (2011) 51 Cal.4th 1178, 1187, [126 Cal .Rptr.3d 456,253 P.3d 546] [“[w]riting can be authenticated by circumstantial evidence and by its contents.”].) Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 843 [181 Cal Rptr.3d 781, 787-88] Civil Code section 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. The statute states: “(a) 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 **788 attributable.” (Civ. Code, § 1633.9, subd. (a), italics added.) Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 843 [181 Cal.Rptr.3d 781, 787-88] Subject to these provisions and rules, and even more so than was the case in Ruiz v. Moss Bros. Auto Group, Inc., supra, the moving party has failed to meet its burden approved by showing, by a preponderance of the evidence, that the purported electronic signature on the arbitration agreement in question is that of the Plaintiff. First, as demonstrated above, defendants’ assertions about the “Mutual Agreement to Arbitrate Claims” are untrue, based on undisputed evidence. Second, the evidence further indicates that ASM management was directed to override ASM corporate policy as needed to limit losses. Third, the evidence further indicates that ASM management was directed to override ASM 6 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T A P R O F E S S I O N A L C O R P O R A T I O N L A W O F F I C E S O F D A V I D S. 62 9 S T A T E S T R E E T , S U I T E 21 5 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E S A N T A B A R B A R A , C A 9 3 1 0 1 8 0 5 - 8 4 5 - 5 4 5 7 F A C S I M I L E Ut 6 10 11 12 13 14 16 17 18 corporate policy as needed to limit losses. Fourth, the evidence further indicates that ASM’s HR Department used Plaintiff’s User ID and password to override ASM’s HR system requirements even after Plaintiff’s termination. Plaintiff never saw, nor consented to, the Agreement to Arbitrate that is the subject of this motion. Wallace Decl., J 26. Rather, that document was completed on July 8, 2013, using Plaintiff’s electronic signature, user ID and password, which was in the possession of ASM’s HR Department on July 4,2013. Id. For these reasons, Plaintiff does not consent to arbitrate the claims made in this lawsuit. Wallace Decl., J 27. Plaintiff did not consent to arbitrate the claims made in this lawsuit. Id. Plaintiff did not participate in any agreement to arbitrate the claims made in this lawsuit. Id. Accordingly, the motion should be denied. B. Even Assuming The Court Concludes There Is A Factual Or Evidentiary Question As To The Existence Of The Arbitration Agreement, It Should Hold An Evidentiary Hearing, After Allowing The Parties An Opportunity To Engage In Discovery, Before Making A Final Ruling There is ample precedent demonstrating that an evidentiary hearing must be conducted where, as here, the existence or validity of an arbitration agreement is in question. Elaborating on Rosenthal, Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 [101 Cal Rptr.3d 97], explained it this way: “Thus, our Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.” (Rosenthal, supra, 14 Cal 4th at pp. 402, 413.) In this way, a court's role, though limited, is critical. ‘There is indeed a strong policy in **692 favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitrable.” (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473,481)” The court went on to remand the matter for such factual determination even after the arbitration had been held. (Toal v. Tardif, supra, 178 Cal.App.4th at p. 1224.) Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal. App.4th 79,97. Nonetheless, we agree that where--as is common with allegations of fraud such as are made here--the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination. As the trial court here remarked, ‘it's pretty difficult to weigh credibility without seeing the witnesses.” ” (Id., at pp. 413-414, 58 Cal .Rptr.2d 875,926 P.2d 1061.) 7 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T 57 F A C S I M I L E 54 A P R O F E S S I O N A L C O R P O R A T I O N 8 0 5 - 8 4 5 L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 22 Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79,96 [183 Cal .Rptr.3d 679, 691] Accordingly, even if the court determines there is a question of fact as to whether or not defendants have met their evidentiary burden of proof in bringing this motion, further discovery and an evidentiary hearing must be conducted. C. The FAA Provides A Right To A Jury Trial If The Employee Disputes The Actual Making Of An Arbitration Agreement It is clear from the motion itself that Defendants concede the FAA controls disposition of this proceeding. Defendants’ Memo. of P & A, pp. 4-6. The Federal Arbitration Act provides a right to a jury trial if the employee disputes the actual making of the contract: “If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, ... the court shall hear and determine such issue. ...”(9US.C. §4) Here, Plaintiff demanded a jury trial at the time of the filing of her complaint. Plaintiff continues to demand a jury trial. Because Plaintiff contends that there was no mutual consent, there is an issue as to whether an agreement to arbitrate her employment claims exists. A jury must decide whether the parties actually entered into an arbitration contract. Because Defendants assert that the FAA applies to its Arbitration Policy, and the FAA requires a jury trial when the underlying contract is disputed, there is a serious issue as to whether this Court has authority to grant the motion to compel arbitration in the first instance. D. Even Assuming The Court Finds, After A Proper Evidentiary Hearing, That Plaintiff Actually Executed The Contested Arbitration Agreement, Defendants Have Failed To Establish A Meeting Of The Minds On All Material Points By A Preponderance Of The Evidence, And The Motion Should Be Denied On This Ground Alone Contract formation requires a meeting of the minds on all material points. Banner Entm’t v. Super. Ct., 62 Cal. App.4th 348, 358 (1998); Siegel v. Warner Bros. Entm’t, Inc., 542 F.Supp.2d 1098, 1137 (C.D. Cal. 2008) (citing Banner). “[A]n offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious.” Lima v. Gateway, Inc., 886 F.Supp.2d 8 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T R A , C A 9 3 1 0 1 E L E P H O N E n - aN 2 = = r = n = = = E 8 0 5 - 8 4 5 - 5 4 5 7 F A C S I M I L E 8 0 5 - 7 7 0 - 2 6 6 ( 62 9 S T A T E S S A N T A B A R Z © = H « ~ o & & © = « Z o = 0 hn = = < & ~ « L A W O F F I C E S O F D A V I D S. Ut 6 10 11 12 13 14 16 17 18 22 1170, 1179 (C.D. Cal. 2012), quoting Windsor Mills, Inc. v. Collins & Aikman Corp., 25 Cal. App.3d 987,992 (1972). “This principle of knowing consent applies with particular force to provisions for arbitration.” 1d. In this case, even if, despite the evidence presented, the court determines Plaintiff did electronically sign the agreement in question, Plaintiff did not have notice of the terms of the Agreement to Arbitrate and therefore could not have assented to it. Notably, the Agreement to Arbitrate was not hyperlinked to the online application and Defendant does not dispute that Plaintiff could not access the DRP at the time he applied online. (Reply at 4.) Instead, it is anticipated that Defendants will argue that argue that Plaintiff should have inquired about the Agreement to Arbitrate and its terms before submitting the application, and that by choosing to proceed without doing so, she consented to its terms. The Court should not accept this proposition. This case is readily distinguishable from situations in which the website user has access and an opportunity to review the terms of the agreement before consenting. See, e.g., Swift v. Zynga Game Network, Inc., 805 F.Supp.2d 904, 912 (N.D. Cal. 2011) (“Because Plaintiff was provided with an opportunity to review the terms of service in the form of a hyperlink immediately under the ‘I accept’ button and she admittedly clicked ‘Accept,’ . . . a binding contract was created here.”); Lima v. Gateway, Inc., 886 F.Supp.2d at 1179 (finding plaintiff did not have constructive notice of the terms of the agreement because the hyperlink was located in a non-obvious location at the bottom of defendant’s product specifications webpage). This case presents facts similar to Swift v. Zynga Game Network, Inc., supra, and Lima v. Gateway, Inc., supra, in that the extremely small print, boilerplate reference to the rules which purportedly apply to the arbitration proceeding here were located in a non-- obvious location in the middle of the purported “arbitration procedures” set forth in the “mutual agreement to arbitrate.” Declaration of Willis Preston dated November 9, 2016 (Exhibit “A”), p. 2. Plaintiff had no opportunity to review the “arbitration procedures” before purportedly clicking “submit.” The Court should rejects Defendants’ attempt to shift the burden to Plaintiff to inquire about the Agreement to Arbitrate as she was filling out his application. Likewise, it is unreasonable to expect Plaintiff would use her network login without anyone drawing his attention to it. 9 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION S E C R E S T A P R O F E S S I O N A L C O R P O R A T I O N 62 9 S T A T E S T R E E T , S U I T E 21 5 S A N T A B A R B A R A , CA 93 10 1 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E 8 0 5 - 8 4 5 - 5 4 5 7 F A C S I M I L E L A W O F F I C E S O F D A V I D S. ot 6G ~ 9 10 11 The Court should rightfully find, as a result, that there was no meeting of the minds because Defendant failed to make a copy of the purported “arbitration procedures” available to Plaintiff. As a result, Plaintiff cannot be bound by the terms of the Agreement to Arbitrate, even if it is assumed Defendants have met their evidentiary burden of proof - which they have not - that Plaintiff signed the agreement electronically. III. CONCLUSION Based on the foregoing analysis and authority, Plaintiff respectfully requests the motion be denied. Alternatively, Plaintiff respectfully requests the parties be permitted an opportunity to engage in discovery of a limited nature directed to the parameters of the dispute before the court, and to allow the court to have an evidentiary hearing on this issue. Dated: December 2, 2016 Law Offices of David S. Secrest A Professional Corporation W David S. Secrest, Esq. Attorney for Plaintiff Michelle Wallace 10 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION 8 0 5 - 7 7 0 - 2 6 6 0 T E L E P H O N E 8 0 5 - 8 4 5 - 5 4 5 7 F A C S I M I L E S A N T A B A R B A R A , C A 93 10 1 L A W O F F I C E S O F D A V I D S. S E C R E S T A P R O F E S S I O N A L C O R P O R A T I O N 62 9 S T A T E S T R E E T , S U I T E 21 5 1 10 11 PROOF OF SERVICE Michelle Wallace v. Advantage Sales and Marketing, LL Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC I, David S. Secrest, declare: I am over the age of 18 years and not a party to the within action. I am employed in the County of Santa Barbara, State of California and my business address and place of business is 629 State St., Suite 215, Santa Barbara, CA 93101. On the date entered below, I served the following document(s): PLAINTIFF MICHELLE WALLACE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND REQUEST FOR DISMISSAL PENDING ARBITRATION XX By Express, Overnight Mail [CCP §§ 1013(c), 2015.5]: I placed a true copy of the aforementioned document in a sealed envelope, in the area designated overnight, express mail pick- up, addressed as set forth below or on the attached Service List. TYLER T. RASMUSSEN, SBN 271987 FISHER & PHILLIPS LLP 2050 Main Street, Suite 1000 Irvine, California 92614 I declare under penalty of perjury in accordance with the laws of the State of California that the foregoing is true and correct, and that this document was executed at Santa Barbara, California, on December 2, 2016. David S. Secrest 11 Michelle Wallace v. Advantage Sales and Marketing, LLC, Orange Sup Ct. No. 30-2016-00879624-CU-WT-CJC MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION