Gonzalez v. Boardriders Wholesale CA4/3 ( 2023 )

Filed 6/27/23 Gonzalez v. Boardriders Wholesale CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MIGUEL GONZALEZ,
Plaintiff and Respondent, G061512
v. (Super. Ct. No. 30-2022-01240829)
BOARDRIDERS WHOLESALE, LLC et OPINION
al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Lon F.
Hurwitz, Judge. Affirmed.
Epstein Becker & Green, Michael S. Kun and Kevin D. Sullivan, for
Defendants and Appellants.
Diefer Law Group, Omri A. Ben-Ari, and Melissa Newman Avila, for
Plaintiff and Respondent.
* * *
After Miguel Gonzalez filed a complaint against his former employer
Boardriders Wholesale, LLC (Boardriders) and former supervisor, Emily Alvarez
(collectively “Appellants”), they filed a motion to compel arbitration pursuant to an
arbitration agreement that Gonzalez purportedly signed electronically. Gonzalez denied
signing the arbitration agreement. The trial court denied the motion to compel
arbitration, finding that appellants failed to establish Gonzalez signed the electronic
document and thus failed to satisfy their burden of proof to prove the existence of a valid
arbitration agreement. Appellants contend the court’s finding was erroneous on multiple
grounds. As discussed below, we conclude appellants failed to show the undisputed
evidence compels reversal. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Motion to Compel Arbitration
On January 14, 2022, Gonzalez filed a complaint alleging various claims
against appellants and demanded a jury trial. The complaint did not reference any
arbitration agreement. Appellants filed their answers, asserting numerous affirmative
defenses, including that the claims were barred because Gonzalez was “required to
arbitrate his claims pursuant to a valid and enforceable arbitration agreement.”
On May 3, 2022, appellants filed their motion to compel arbitration and
stay the action (Arbitration Motion). In the motion, appellants alleged that Gonzalez
electronically signed an arbitration agreement when he began his employment with
Boardriders. The agreement, attached as an exhibit, covered the claims at issue.
Appellants further alleged the attached declaration of Brian Bustillos would demonstrate
that “only [Gonzalez] could have taken the actions to complete his new hire paperwork,
including the Arbitration Agreement.”
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In his declaration, Bustillos stated that he is a Senior Director, Human
Resources Business Manager for Boardriders. He reviewed Gonzalez’s personal records,
and “[b]ased on information available to me, [Gonzalez] completed his new hire
paperwork through SignNow on September 20, 2020, including an Employee Personal
Information form, a Direct Deposit form, a W-4 form, a Withholding Allowance
Certificate, an I-9 form, and a Voluntary Meal Period Waiver.” SignNow is a company
that delivers new-hire forms electronically to a personal e-mail address provided by new
hires. Gonzalez also electronically signed a Mutual Agreement to Arbitrate on
September 29, 2020. Bustillos further stated: “The use of security procedures in the new
hire process, including but not limited to, the highly factual and detailed personal and
biographical information collected during the process and the numerous other documents
completed by [Gonzalez] during the process, lead me to conclude that only [Gonzalez]
could have taken the actions to complete the new hire paperwork on September 20, 2020.
Consequently, I conclude that the electronic signature on the Mutual Agreement to
Arbitrate was the result of [Gonzalez]’s actions on September 20, 2020.”
B. Opposition to Arbitration Motion
On April 19, 2022, Gonzalez filed his opposition to the Arbitration Motion,
arguing appellants failed to meet their burden of proving the existence of an agreement to
arbitrate. He noted that appellants “failed to provide evidence of an IP address, a unique
username and password, an email address where the agreement was supposedly sent, or
any details about how only Plaintiff could have logged in to sign. Moreover, the
information that [appellants] did provide was contradictory; on [the] one hand, [they]
state[d] that the signature [on the arbitration agreement] was the acts of events from
September 20, 2020, and on the other they claim it must have been signed September 29,
2020.” (Bold in original.)
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Gonzalez also objected to the entirety of the Bustillos declaration as lacking
foundation. Specifically, Gonzalez argued that Bustillos: (1) lacked the requisite
personal knowledge of the events that occurred on September 20, 2020; (2) did not
establish he was a qualified Custodian of Records for the SignNow documents; and (3)
that he witnessed the execution of the arbitration agreement.
In a supporting declaration, Gonzalez denied signing, electronically or
physically, an arbitration agreement with Boardriders. He stated he never created an
“electronic signature” that Boardriders could use. He further stated he never met
Bustillos and never heard of SignNow. He also never met David Tanner, who
purportedly signed the arbitration agreement on behalf of Boardriders. Finally, Gonzalez
stated his belief that Boardriders forged his signature on the arbitration agreement based
on another instance of alleged forgery of a disciplinary report.
C. Reply
In reply, appellants asserted that Gonzalez committed perjury when he
denied electronically signing the arbitration agreement because the forgery allegation was
credible only if appellants “hacked his personal email account and somehow obtained his
personal information to forge his pre-employment documents.” After acknowledging
that the Bustillos declaration mistakenly referenced a “September 20, 2020” date, when
all the new-hire paperwork, including the arbitration agreement, was sent to Gonzalez’s
personal email address and signed on “September 29, 2020,” appellants argued that it was
not credible that Boardriders knew his personal e-mail address and sensitive personal
information, and engaged in “criminal conduct just to create an arbitration agreement
with him.” (Bold and italics omitted.)
Appellants also requested that the trial court conduct an evidentiary hearing
if it were inclined to give any weight to Gonzalez’s contention that his electronic
signature on the arbitration agreement was forged. Appellants proposed that at the
evidentiary hearing, Gonzalez would be questioned on “how he signed his pre-
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employment paperwork, all of which contains [sic] the same electronic signature -- and
how he contends [appellants] obtained personal information about his Social Security
number, his home address, his cellphone number, his email address, his date of birth, his
high school, his previous employer, his sister’s name, and contact information, and his
bank account number to forge all of those documents.”
Bustillos filed a notice of errata in which he stated there was a
typographical error in his prior declaration: the date Gonzalez completed his new hire
paperwork was erroneously typed as “September 20, 2020” instead of “September 29,
2020.”
Bustillos also filed a supplemental declaration in which he stated that
“[b]ased on the information available to me, in addition to his arbitration agreement,
[Gonzalez] also completed and electronically signed” several other documents on
September 29, 2020, which contained confidential information, such as his Social
Security number, date of birth, high school, contact information for his sister, banking
information, and personal e-mail address. Bustillos also stated that SignNow permits
Boardriders to access information about when and how its employees accessed and
completed their pre-employment paperwork. “On April 25, 2022, Boardriders’ human
resources department accessed the SignNow platform and printed out the information
showing when and how [Gonzalez] accessed and completed his pre-employment
paperwork. According to that printout, [attached to the declaration as Exhibit 16],
[Gonzalez] completed his pre-employment documents on September 29, 2020 using a
computer with the IP address [##.###.##.140] through the email [ *.*.gmail.com].”
Gonzalez objected to the supplemental declaration as lacking foundation
and to the attachments for lack of authentication and foundation as business records
(Evid. Code, § 1271). The trial court sustained the objection to Bustillos’s statement that
Gonzalez ‘“signed a Mutual Agreement to Arbitrate on September 29, 2020,”’ and to
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Exhibits 1 through 15 to the supplemental declaration, but overruled the remaining
evidentiary objections.
E. Order Denying Arbitration Motion
The trial court denied the Arbitration Motion, finding that appellants “have
failed to submit any competent evidence establishing that the electronic signature on the
arbitration agreement was placed there by plaintiff, and have therefore failed to meet their
burden to demonstrate the existence of an arbitration agreement by a preponderance of
the evidence.” As the trial court explained, “the mere fact that defendants sent the
SignNow link to an email address provided by plaintiff does not show that only plaintiff
could have accessed the email, the SignNow link, or the documents available through that
link; or, most importantly, that only plaintiff could have signed those documents. Email
accounts can be shared, emails are routinely forwarded, website/portal links can be
clicked by virtually anyone, and absolutely nothing shows that there were any security
precautions of any kind in place to verify the signing party’s identity on these
documents.”
The court also determined that appellants failed to explain the basis for
their assumption that no one other than Gonzalez had access to certain sensitive personal
information or that Gonzalez signed all of the documents, including the “voluntary”
arbitration agreement. Finally, the court concluded that Bustillos failed to set forth any
facts establishing his personal knowledge or the foundation necessary to attest to the truth
of the fact that “all of the [new hire] documents were signed at the same time, much less
by plaintiff.”
II
DISCUSSION
A. Applicable Law
Code of Civil Procedure section 1281.2 requires the trial court to order
arbitration of a controversy “[o]n petition of a party to an arbitration agreement alleging
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the existence of a written agreement to arbitrate a controversy and that a party to the
agreement refuses to arbitrate that controversy . . . if it determines that an agreement to
arbitrate the controversy exists.” On a motion to compel arbitration, the threshold
question is whether there is an agreement to arbitrate the dispute. (Trinity v. Life Ins. Co.
of North America (2022) 78 Cal.App.5th 1111, 1120 (Trinity).) The party seeking to
compel arbitration bears the burden of proving by a preponderance of the evidence an
agreement to arbitrate a dispute exists. (Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236; Rosenthal v. Great Western
Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal).) To meet this burden, the
moving party must first produce “prima facie evidence of a written agreement to arbitrate
the controversy.” (Rosenthal, 14 Cal.App.4th at p. 413; accord, Gamboa v. Northeast
Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) “‘If the moving party
meets its initial prima facie burden and the opposing party disputes the agreement, then
. . . the opposing party bears the burden of producing evidence to challenge the
authenticity of the agreement.” (Gamboa, 72 Cal.App.5th at p. 165.) “If the opposing
party produces such evidence, then ‘the moving party must establish with admissible
evidence a valid arbitration agreement between the parties.’” (Trinity, 78 Cal.App.5th at
p. 1120.) “Despite the shifting burden of production, ‘[t]he burden of proving the
agreement by a preponderance of the evidence remains with the moving party.’” (Ibid.)
“Where the trial court’s ruling is based on a finding of fact, we review the
decision for substantial evidence. [Citations.] Under this deferential standard, “‘[a]ll
factual matters will be viewed most favorably to the prevailing party [citations] and in
support of the judgment.”’ [Citations.]” (Trinity, supra, 78 Cal.App.5th at p. 1121.)
“However, ‘[w]hen, as here, the court’s order denying a motion to compel arbitration is
based on the court’s finding that petitioner failed to carry its burden of proof, the question
for the reviewing court is whether that finding was erroneous as a matter of law.’
[Citations.]” (Ibid.) “‘Specifically, the question becomes whether the appellant’s
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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.”’” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th
828, 838; accord, Trinity, supra, 78 Cal.App.5th at p. 1121.) “Where, as here, the
judgment is against the party who has the burden of proof, it is almost impossible for [the
party] to prevail on appeal by arguing the evidence compels a judgment in [the party’s]
favor. That is because unless the trial court makes specific findings of fact in favor of the
losing [party], we presume the trial court found the [losing 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.”
(Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th
1478, 1486.)
B. Appellants Have Not Demonstrated Trial Court’s Factual Finding Was Erroneous As
a Matter of Law
Here, appellants made a prima facie case for the existence of a valid
arbitration agreement by attaching the purported arbitration agreement to its Arbitration
Motion. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541,
(Bannister) [“The party seeking arbitration can meet its initial burden by attaching to the
[motion or] petition a copy of the arbitration agreement purporting to bear the [opposing
party’s] signature.”].) However, Gonzalez disputed the authenticity of the arbitration
agreement by stating in a sworn declaration that he never signed, physically or
electronically, the agreement. (See Gamboa, supra, 72 Cal.App.5th at p. 165 [opposing
party can meet its burden to dispute arbitration agreement by “testify[ing] under oath or
declar[ing] under penalty of perjury that the party never saw or does not remember seeing
the agreement, or that the party never signed or does not remember signing the
agreement.”].) “Once [Gonzalez] challenged the validity of [his]signature [on the
arbitration agreement] in his opposition, [appellants] were then required to establish by a
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preponderance of the evidence that the signature was authentic.” (Espejo v. Southern
California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).)
“[T]he burden of authenticating an electronic signature is not great.” (Ruiz
v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844 (Ruiz).) “An . . .
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.” (Civ. Code, § 1633.9, subd. (a).) “For example, 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, supra, 64 Cal.App.5th at p. 545, citing Espejo, supra, 246
Cal.App.4th at p. 1062.)
Here, appellants sought to establish that the electronic signature on the
arbitration agreement was Gonzalez’s through the initial and supplemental declarations of
Bustillos. In those declarations, Bustillos opined that Gonzalez electronically signed the
arbitration agreement because other documents were electronically signed with the same
signature on the same date via SignNow, and those other documents required Gonzalez’s
confidential personal information. Bustillos testified that to electronically sign the
documents, a person must access the documents via a SignNow link sent to an email
address provided by that person.
In his supplemental declaration, Bustillos states that the documents were
signed via a device with a specific IP address and that the SignNow link was sent to a
specific email address. The IP address and email address were supposedly on a SignNow
document that Boardriders HR department accessed and printed out on April 25, 2022.
Bustillos, however, did not state he personally accessed, viewed or printed out the
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document. The printout purportedly was attached as Exhibit 16 to Bustillos’s
Supplemental Declaration, but Exhibit 16 in the record on appeal does not show the IP
address or email address.
On the record above, we conclude appellants have not met their burden to
demonstrate that the trial court’s finding they failed to prove Gonzalez signed the
arbitration was erroneous as a matter of law. Bustillos never testified he personally
witnessed Gonzalez sign the agreement. He did not testify about the process, if any, that
Boardriders or SignNow uses to verify that the same person signed all the documents and
all in the same time period. Indeed, the undisputed evidence was that Gonzalez was not
assigned a unique login and password to access the SignNow link. Nor is there any
admissible evidence in the record that all the new-hire documents were signed within a
short period of time from the same computer, such as timestamps. Finally, there were no
security measures to ascertain that an email link was not forwarded or accessed by
someone other than Gonzalez. In sum, the declarations of Bustillos do not explain how
the electronic signature could have only been placed on the Arbitration Agreement by
Gonzalez. Accordingly, appellants have not met their appellate burden to show that the
Bustillos declarations compel reversal.
Appellants’ reliance on Anderson v. Safe Streets USA LLC (E.D. Cal., Aug.
29, 2018) 2018 WL 4106135 (Anderson), Gonzalez v. Ceva Logistics U.S., Inc. (N.D.
Cal., Oct. 31, 2016) 2016 WL 6427866 (Gonzalez), and Tagliabue v. J.C. Penney
Corporation, Inc. (E.D. Cal., Dec. 15, 2015) 2015 WL 8780577 (Tagliabue), is
misplaced, as those federal district court cases are factually distinguishable. In Andersen,
the “electronic signature appears on the documents [, including the arbitration
agreement] next to a date and time stamp” and “all of the hiring forms were submitted
within fifteen minutes of each other, between 12:29 p.m. and 12:45 p.m. on August 19.”
(Id., 2018 WL 4106135, at *1 & *4.) There are no time stamps on the new-hire
documents here. In Gonzalez, the online application, which contained the arbitration
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agreement, was “electronically date and time stamped” and Gonzalez “failed in response
to allege that she did not sign the agreement or otherwise call into question the
authenticity of the signature.” (Id., 2016 WL 6427866, at *3–*4.) In contrast here,
Gonzalez has alleged he did not sign the agreement. Finally, in Tagliabue, in order to
access to the arbitration agreement, “the employee is required to enter his security
number and password,” which are a “unique employee identification number and . . . a
password [he created] when he was hired.” (Id., 2015 WL 8780577, at *3.) As discussed
above, no unique login or password was required to access the arbitration agreement
here.
C. Appellants’ Remaining Claims
We also reject appellants’ other challenges to the trial court’s order denying
the Arbitration Motion.
Appellants argue the trial court abused its discretion in failing to rule on
their request for an evidentiary hearing on Gonzalez’s allegations that they forged his
signature on the arbitration agreement. (See Rosenthal, supra, 14 Cal.4th at p. 414
[“[W]here—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”].)
The court’s ruling, however, was not dependent on Gonzalez’s forgery allegation.
Although the court referenced Gonzalez’s forgery allegation when it summarized the
opposition, it never ruled on the forgery allegation nor used the forgery allegation to
support its finding that appellants failed to meet their burden to show Gonzalez signed the
document. Stated differently, even if appellants had not forged the signature, that fact
does not compel reversal of the court’s finding that appellants did not satisfy their burden
to prove the existence of a valid arbitration agreement. Any error in failing to rule on the
request for an evidentiary hearing on the forgery allegation was thus harmless.
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Appellants also argue the trial court applied a burden of proof other than
beyond a preponderance of the evidence. We disagree. In its ruling, the court stated the
proper standard of proof -- “preponderance of the evidence.” Appellants further assert
that “[r]equiring an employer to prove that an applicant did not have a shared e-mail
account, that an applicant did not forward an onboarding email to someone else, or that
no one else in the world could have accessed the applicant’s email account is a standard
much higher than ‘preponderance of evidence.’” They cite no case law for this
proposition, and it is not self-evident. In any event, the trial court did not require
appellants to prove those facts, but merely explained why in the absence of security
measures verifying an applicant’s identity, such as a unique login and password, those
facts would satisfy the trial court that appellants had met their burden of proof.
Finally, appellants argue the trial court abused its discretion in sustaining
Gonzalez’s evidentiary objections to Exhibits 1 through 15 in Bustillos’s supplemental
declaration. Exhibits 1 through 15 are the new-hire documents Gonzalez purportedly
signed on September 29, 2020, which included the arbitration agreement, an Employee
Personal Information form, and the W-4 form. Any error is harmless. The documents
are duplicative of Bustillos’s statements in his initial declaration listing the new-hire
documents. More important, the excluded exhibits do not affect the court’s factual
determinations, given that the court explicitly addressed whether sensitive information in
“a W-4 form or emergency contact form” established it was Gonzalez who signed the
documents. Additionally, we have conditionally reviewed those documents and they do
not change our conclusion that appellants have not shown the trial court’s finding that
they failed to meet their burden of proof was erroneous as a matter of law.
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III
DISPOSITION
The order of the trial court denying the motion to compel arbitration is
affirmed. Gonzalez may recover his costs on appeal.
DELANEY, J.
WE CONCUR:
SANCHEZ, Acting P. J.
MOTOIKE, J.
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