Spencer v. Endless Pursuit Corp. CA2/7

Filed 4/20/23 Spencer v. Endless Pursuit Corp. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
TROVAN SPENCER, B316215
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV01599)
v.
ENDLESS PURSUIT CORP. et
al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael L. Stern, Judge. Reversed and
remanded with directions.
Dermer Behrendt, Jeffrey D. Dermer; Theodora Oringher
and Kenneth E. Johnson for Defendants and Appellants.
Cummins & Franck, Scott O. Cummings and Lee Franck
for Plaintiff and Respondent.
_________________________
Endless Pursuit Corp. (Endless), Seed Your Own, LLC, and
William Herbe (collectively, the Endless defendants) appeal from
an order denying their motion to compel arbitration of an
employment action filed by Trovan Spencer. Although the trial
court concluded in its initial order that Spencer had not
electronically signed the Endless arbitration agreement, the court
granted the Endless defendants’ motion to compel arbitration.
Then, following a motion for reconsideration, the court denied
reconsideration but entered a nunc pro tunc order correcting its
prior order and denying the motion to compel arbitration.
On appeal, the Endless defendants argue the court erred in
correcting its order absent a change in law or facts. They also
contend the court erred because (1) Spencer electronically signed
the arbitration agreement; (2) even if Spencer did not sign the
agreement, there was an implied agreement to arbitrate; and
(3) Spencer electronically signed a second arbitration agreement
with Decision HR XXI, Inc. (Decision HR), a professional
employer organization, which agreement required Spencer to
arbitrate his claims against the Endless defendants. Because the
evidence submitted by the Endless defendants compels the
conclusion Spencer signed the arbitration agreement, and
Spencer does not argue unconscionability on appeal, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and Complaint
Endless is in the business of picking up and recycling or
disposing of household junk in the Los Angeles area under the
business name “1-800-Got-Junk?”. Spencer was employed by
Endless as a truck team member and driver from April 2018 until
2
his employment was terminated in May 2020. William Herbe, a
general manager of Endless, was involved in the hiring of
Spencer.
On January 14, 2021 Spencer filed this lawsuit against the
Endless defendants and Decision HR alleging 11 causes of action,
including, among others, for disability discrimination, failure to
accommodate, and hostile work environment in violation of
California’s Fair Employment and Housing Act (Gov. Code,
§ 12900 et seq.), interference with his right to medical leave and
retaliation for his use of medical leave in violation of the
California Moore-Brown-Roberti Family Rights Act (CFRA;
§§ 12945.1, 12945.2), wrongful termination in violation of public
policy, intentional infliction of emotional distress, and unfair
competition (Bus. & Prof. Code, § 17200). Spencer alleged
Endless, Seed Your Own, and Decision HR 1 jointly employed
Spencer, who was supervised by Herbe.
B. The Motion To Compel Arbitration
On March 9, 2021 the Endless defendants moved to compel
arbitration pursuant to the arbitration agreement they asserted
had been electronically signed by Spencer. Herbe attached the
arbitration agreement to his supporting declaration. The
agreement, dated April 9, 2018, states, “The parties to this
Agreement agree to arbitrate any and all disputes, claims, or
controversies . . . they may have against each other, including
their current and former agents, owners, directors, or employees,
which arise from the employment relationship between Employee
and Employer or the termination thereof.” The agreement
1 Decision HR is not a party to this appeal.
3
provides as examples of covered claims those brought under
FEHA and for wrongful termination.
Herbe explained that Endless uses an electronic system
that allows an employee to review documents that must be signed
before the employee is hired, including an arbitration agreement
and acknowledgment of receipt of Endless’s employee handbook.
According to Herbe, the first step in the onboarding process is for
the Endless representative to create an account for the employee
using the employee’s personal email address. The representative
then sends an email to the employee’s personal email address
that enables the employee to select a password for the account
known only to the employee. The company representative then
selects the employment documents to be signed and sends them
to the employee’s account, and the system generates an email
advising the employee that the Endless representative is
requesting the employee sign the documents. Employment
documents can be signed only using the employee’s unique
username and password. According to Herbe, an employee “will
use the computer’s mouse to click on the space where a signature
is required,” then a box appears, prompting the applicant to
“‘draw signature with mouse.’” After the employee and employer
representative sign a document, it is moved to a “‘[c]ompleted’”
folder in the employee’s account, and it can be reviewed by the
employee at any time.
Herbe averred that he initiated the electronic signature
process for Spencer’s employment documents by electronically
creating and sending the arbitration agreement and two other
documents to Spencer’s account on April 9, 2018. Herbe stated
he was with Spencer on April 9 when Herbe logged into his
computer with his own account and password, then logged out.
4
Spencer then used Herbe’s computer to log into his account,
select a password, and electronically sign the arbitration
agreement and other employment-related documents. Herbe
attached to his declaration a copy of the arbitration agreement
and an electronically generated record from the “BambooHR”
system showing that on April 9, 2018 at 10:11 a.m. Herbe used a
1-800-Got-Junk? email address to request Spencer sign the
arbitration agreement; Spencer signed the arbitration agreement
on the same day at 10:28 a.m. using a personal email account;
and Nicole Zalazar signed the arbitration agreement on behalf of
Endless on April 11, 2018 at 6:14 p.m. using an Endless email
address. Herbe added that signing the arbitration agreement
and other employment-related documents “is a necessary step to
complete the hiring process and be entered into the payroll
system.”
In his opposition, Spencer argued he had not electronically
signed the arbitration agreement. Spencer submitted a
supporting declaration in which he stated he “did not see [the
arbitration agreement] or any arbitration agreement when [he]
applied for employment with [Endless],” and he “did not ever
signing [sic] or acknowledging [sic] any agreement.” He stated
further, “I was unable to finish all of the ‘onboarding’ documents
in one day due to technical difficulties with the BambooHR
software. My managers got on the computer using my logged in
account and tried to fix the issue. I was told to come back the
next day to finish the paperwork, but when I left, my account had
not been logged out . . . .” Further, he finished electronically
signing the remaining unsigned documents the following day, but
the arbitration agreement was not among the documents
available for signature.
5
Spencer declared, “It was William Herbe who signed the
Arbitration [Agreement]. He told me that he would sign the
Arbitration Agreement for me. This is nothing new for William
Herbe as he has a history of cutting corners, such as instructing
his employees to take pictures of mattresses in such a way as to
make it look as if it is a full load, when in fact it is not.” Spencer
added, “Even if I had signed it, I would not have signed it using
my middle name. I do not include my middle name when signing
documents, unless prompted by the document, which the
[Arbitration] Agreement does not.” In addition, Spencer stated,
“I would not have signed the arbitration agreement if presented
to me when I applied to [Endless].” Spencer attached a tenant
income certification questionnaire (with the information
redacted) that he had signed as Trovan Spencer. In his
opposition, Spencer also argued the arbitration agreement was
procedurally and substantively unconscionable, and therefore
unenforceable.
On June 22, 2021 (six court days before the June 30
hearing) Decision HR submitted a joinder in the Endless
defendants’ motion to compel arbitration, with a supporting
declaration from Barbie Cooper, Decision HR’s human resources
manager. Cooper averred Decision HR is a professional employer
organization that provides online onboarding documents to its
worksite employer clients on the “Apex (Summit) Human
Resource software system.” Cooper described the Decision HR
onboarding process and opined, based on her review of Spencer’s
onboarding documents and Herbe’s declaration, that Spencer
electronically signed the Decision HR arbitration agreement on
April 20, 2018 at 2:00 p.m. Cooper attached to her declaration
6
the Decision HR arbitration agreement she stated Spencer
signed.
In their reply brief, the Endless defendants argued Spencer
had failed to rebut the showing made by the Endless defendants
that Spencer signed the arbitration agreement on April 9, 2018.
Specifically, the arbitration agreement contained Spencer’s typed
signature, as shown on the arbitration agreement. The Endless
defendants also argued that Spencer had signed all three
employment documents on the BambooHR system using the
name “Trovan Spencer,” without his middle name, referencing
three employment documents Herbe attached to his
supplemental declaration (the arbitration agreement, a
disclosure and authorization document, and an acknowledgment
of receipt of the employee handbook). The Endless defendants
asserted further that Spencer was bound by the arbitration
agreement even if he did not sign it because he was aware it was
a mandatory condition of his employment, and further, he was
required to arbitrate his claims pursuant to the Decision HR
arbitration agreement.
In his supplemental declaration, Herbe averred Spencer’s
statements in his declaration were “not true” that Spencer could
not complete all the onboarding documents on April 9 because of
technical difficulties with the BambooHR software, he was told to
return the next day to complete the process, and he left his
account open without logging out. To the contrary, Herbe
asserted, the electronic system showed Spencer signed all three
documents in his account within four minutes on April 9 at the
times indicated on the electronically generated record. Herbe
added that Spencer electronically signed “the remaining
documents” in his account on April 20, 2018 using the Decision
7
HR’s electronic document system, including Decision HR’s
arbitration agreement, which Spencer signed on April 20 at
2:00 p.m., and six other employment documents. Herbe attached
the Decision HR arbitration agreement to his declaration,
including an electronically generated record showing Trovan
Spencer signed the document at 2:00:17 p.m. on April 20
(although the agreement itself has no signatures).
Herbe also denied that he signed the arbitration agreement
on Spencer’s behalf, emphasizing that Endless employees can
only access an Endless account using the employee’s unique
username and password. Further, the BambooHR system allows
an employee to draw a signature (as indicated in Herbe’s initial
declaration) or to “apply a ‘typed’ signature to the document.”
Herbe attached screenshots of the system showing the “‘draw’”
and “‘type’” buttons available to sign a document. Finally, Herbe
recounted that Spencer logged into his account on the BambooHR
system on April 20, 2018 and May 7, 2019, and each time he
could have opened and reviewed the arbitration agreement.
C. The Trial Court’s Ruling and Nunc Pro Tunc Order
The trial court held a hearing on the Endless defendants’
motion on June 30, 2021. The court heard argument of counsel,
but no testimony was presented at the hearing.2 Later that day
the trial court issued a ruling in a minute order (June 30 order)
granting the Endless defendants’ motion to compel arbitration.
2 There was no court reporter at either the June or August
2021 hearing. However, on March 18, 2022 the trial court
certified the Endless defendants’ proposed settled statement,
which described the two hearings. (See Cal. Rules of Court,
rule 8.137.)
8
The minute order discussed the evidence submitted by the
Endless defendants, including Herbe’s declaration in which he
explained Endless’s electronic signature process, stated that
Spencer signed the arbitration agreement, and attached an
electronically generated “date stamp” showing Spencer signed the
arbitration agreement on April 9, 2018 at 10:28 a.m. The court
also described Spencer’s declaration, including his averment that
he never saw or signed the arbitration agreement, never used his
middle name on official documents, and could not finish
completing the onboarding documents on April 9. Further,
Spencer declared it was Herbe who signed the arbitration
agreement. The court found, “There are no other documents
provided with the moving papers besides what is summarized
above. There is no testimony about the time that the documents
were signed by [Spencer] nor any testimony about the computer
glitch. Therefore, by review of the evidence in the moving and
opposing papers, the Court can conclude that [Spencer] is telling
the truth about not signing as there is nothing in the moving
evidence to contradict this testimony. [¶] The Court does not
question the credibility of [Spencer’s] contention that he did [not]
sign the agreement.” The court also found procedural
unconscionability but no substantive unconscionability.
Although the trial court found Spencer had not signed the
arbitration agreement, the court proceeded to grant the motion to
compel arbitration and to dismiss the case without prejudice.
The court observed that it had not received a joinder by Decision
HR, but it considered Decision HR “to have joined in this motion,”
and it granted the joinder in the motion.
On July 14, 2021 Spencer filed a “motion for
reconsideration/clarification of order granting motion to compel
9
arbitration.” (Capitalization omitted.) In his motion, Spencer
requested the trial court “on its own motion, modify the prior
order so as to reflect the Court’s conclusion that [Spencer]
evidently did not sign the Arbitration Agreement, thus amending
the order to deny the Motion to Compel Arbitration.”
(Capitalization, boldface, and underlining omitted.) Spencer
relied on the holding in Le Francois v. Goel (2005) 35 Cal.4th
1094, 1108 (Le Francois) that a court may on its own motion
reconsider its prior ruling based on the “‘suggestion’” of a party.
The Endless defendants opposed the motion, arguing it was
filed in violation of Code of Civil Procedure section 1008,
subdivision (a),3 because Spencer presented no new facts or law,
and Le Francois did not authorize a written motion for
reconsideration in those circumstances, but rather, only an oral
request that the court reconsider its decision. (Citing Le
Francois, supra, 35 Cal.4th at p. 1108.) The Endless defendants
also argued the evidence supported the court’s ruling because it
showed Spencer signed the Endless arbitration agreement, as
well as the Decision HR arbitration agreement. Decision HR
filed a separate opposition to the motion.
On August 24, 2021, after a hearing, the trial court denied
Spencer’s motion, explaining there were no new facts or law, and
there is “[n]o such motion as a motion for clarification.” The
court instead treated the motion “as one for nunc pro tunc
correction of the Minute Order of 06/30/2021.” The court granted
this motion, explaining, “It appearing to the Court that through
inadvertence and/or clerical error, the minute order of 06/30/2021
3 Further statutory references are to the Code of Civil
Procedure.
10
in the above-entitled action does not properly reflect the Court’s
order. Said minute order is ordered corrected nunc pro tunc as of
06/30/2021 . . . .” The order revised paragraphs 18 and 19 of the
court’s June 30 order granting the motion to compel arbitration
and joinder to instead read that the motion and joinder were
denied. The court added as to the Decision HR joinder that it
could file its own motion to compel arbitration.
The Endless defendants timely appealed from the
August 24, 2021 order.
DISCUSSION
A. Principles of Arbitration and Standard of Review
Section 1281.2 requires the trial court to order arbitration
of a controversy “[o]n petition of a party to an arbitration
agreement alleging 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. (Pinnacle Museum Tower
Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 236 (Pinnacle) [“‘“‘[A] party cannot be required to
submit to arbitration any dispute which he has not agreed so to
submit.’”’”]; 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, supra, 55 Cal.4th at p. 236;
Rosenthal v. Great Western Fin. Securities Corp. (1996)
11
14 Cal.4th 394, 413.) To meet this burden, the moving party
must first produce “prima facie evidence of a written agreement
to arbitrate the controversy.” (Rosenthal, at p. 413; accord,
Trinity, supra, 78 Cal.App.5th at p. 1120; 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, at p. 165; accord,
Trinity, at p. 1120; see Engalla v. Permanente Medical Group,
Inc. (1997) 15 Cal.4th 951, 972; Rosenthal, at p. 413.) “If the
opposing party produces such evidence, then ‘the moving party
must establish with admissible evidence a valid arbitration
agreement between the parties.’” (Trinity, at p. 1120; accord,
Gamboa, at p. 165.) “Despite the shifting burden of production,
‘[t]he burden of proving the agreement by a preponderance of the
evidence remains with the moving party.’” (Trinity, at p. 1120;
accord, Gamboa, at pp. 165-166.)
Where the evidence is not in conflict, we review de novo the
trial court’s ruling on a petition to compel arbitration. (Pinnacle,
supra, 55 Cal.4th at p. 236; Trinity, supra, 78 Cal.App.5th at
p. 1120; Gamboa, supra, 72 Cal.App.5th at p. 166.) Where the
court’s ruling is based on factual findings, we review the ruling
for substantial evidence. (Trinity, at p. 1121; Gamboa, at
p. 166.) “Under this deferential standard, ‘“[A]ll factual matters
will be viewed most favorably to the prevailing party [citations]
and in support of the judgment.”’” (Trinity, 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
12
whether that finding was erroneous as a matter of law.’” (Ibid.;
accord, Gamboa, at p. 166; Fabian v. Renovate America, Inc.
(2019) 42 Cal.App.5th 1062, 1066; see Juen v. Alain Pinel
Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979; Dreyer’s Grand
Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828,
838.)
“‘Specifically, the question becomes whether the 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.”’”
(Juen, supra, 32 Cal.App.5th at p. 979; accord, Trinity, supra,
78 Cal.App.5th at p. 1121; Dreyer’s Grand Ice Cream, supra,
218 Cal.App.4th at p. 838.) “‘[W]here . . . the judgment is against
the party who has the burden of proof, it is almost impossible for
him to prevail on appeal by arguing the evidence compels a
judgment in his favor.’” (Atkins v. City of Los Angeles (2017)
8 Cal.App.5th 696, 734; accord, Bookout v. State of California ex
rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486.)
“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, at p. 1486; see In re R.V. (2015)
61 Cal.4th 181, 201, [where party fails to meet its burden on an
issue in the trial court, “the inquiry on appeal is whether the
weight and character of the evidence . . . was such that the [trial]
court could not reasonably reject it”].)
13
B. The Trial Court Did Not Err in Correcting Its June 30
Order
The Endless defendants contend the trial court erred in
modifying its June 30 order because Spencer’s motion did not
comply with section 1008, subdivision (a), and the trial court did
not comply with the requirements of Le Francois, supra,35 Cal.4th 1094 for a court to reconsider its ruling upon an
informal request by a party.4 Spencer responds that his motion
for reconsideration is not at issue on appeal because the court
denied the motion and instead corrected its June 30 order nunc
pro tunc. In light of the court’s characterization of its August 24,
2021 correction of its earlier order as being based on clerical error
or inadvertence, and in the absence of any evidence to the
contrary, we conclude it was not error to make the correction.
Whether the trial court had the authority to correct its
June 30 order nunc pro tunc turns on whether the error it was
correcting was clerical or judicial. As the Court of Appeal
4 Under section 1008, subdivision (e), the trial court
generally has no jurisdiction to hear a motion for reconsideration
that does not comply with the requirements of the section.
(Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1278; Kerns v.
CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.) However,
there is an “exception to section 1008’s ‘jurisdiction[al]’ [citation]
exclusivity” where a trial court reconsiders its prior interim order
on its own motion. (Even Zohar Construction & Remodeling, Inc.
v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840; see Le
Francois, supra, 35 Cal.4th at p. 1108 [“If a court believes one of
its prior interim orders was erroneous, it should be able to correct
that error no matter how it came to acquire that belief. For
example, nothing would prevent the losing party from asking the
court at a status conference to reconsider a ruling.”].)
14
explained in Sannmann v. Department of Justice (2020)
47 Cal.App.5th 676, 683, “Trial courts have the authority to enter
nunc pro tunc orders to address clerical errors, but
not judicial errors.” (Accord, People v. Kim (2012)
212 Cal.App.4th 117, 124; see In re Candelario (1970) 3 Cal.3d
702, 705 [“It is not open to question that a court has the inherent
power to correct clerical errors in its records so as to make these
records reflect the true facts.”].) “The distinction between clerical
error and judicial error is ‘whether the error was made in
rendering the judgment, or in recording the judgment rendered.’”
(Candelario, at p. 705; accord, Sannmann, at pp. 679, 683 [trial
court lacked authority to grant relief to petitioner based on nunc
pro tunc order where amended order did not correct a clerical
error, and instead retroactively modified the record]; People v.
Borja (2002) 95 Cal.App.4th 481, 485, 487 [trial court erred in
issuing nunc pro tunc order retroactively changing defendant’s
sentence from 365 days in custody to 364 days to avoid
immigration consequences because modification did not involve
clerical error].)
We are troubled by the possibility that either the court
clerk incorrectly entered the June 30 order (absent any apparent
review by the trial court) or the court “through inadvertence”
entered an erroneous order. Such sloppiness in entering an
erroneous substantive order is inconsistent with the court’s
obligation to the parties and the justice system. However, it
appears the June 30 order’s statement granting the motion to
compel arbitration and joinder was inadvertent in light of the
court’s clear finding based on Spencer’s evidence that Spencer did
not sign the arbitration agreement due to technical difficulties
with the software, and when he returned the next day to sign the
15
employment documents, the arbitration agreement was not
among the unsigned documents. Based on these facts, the court
found “that [Spencer] is telling the truth about not signing.” The
minute order appears to have a typo in the next sentence that
reads, “The Court does not question the credibility of [Spencer’s]
contention that he did sign the agreement.” It is evident given
the court’s previous summary of the evidence and findings that
the court intended to state that it did not question the credibility
of the fact Spencer “did not sign” the agreement. The remainder
of the order is likewise careless in addressing unconscionability
(given the court’s finding Spencer did not sign the agreement),
and then purporting to grant the motion to compel arbitration
and joinder.
Although we have difficulty understanding how the court or
court clerk could have made such significant errors in the
June 30 order, the August 24, 2021 order stating those errors
were clerical or made through inadvertence is presumed on
appeal to be correct, with the burden on the appellant to
affirmatively prove error. (Petrolink, Inc. v. Lantel
Enterprises (2022) 81 Cal.App.5th 156, 165; Delta Stewardship
Council Cases (2020) 48 Cal.App.5th 1014, 1075.) The Endless
defendants have not pointed to anything in the record that shows
the trial court initially intended to grant the motion, then later
made a judicial decision to change its ruling to deny the motion.
C. The Trial Court Erred in Denying the Endless Defendants’
Motion To Compel Arbitration
It is undisputed that the Endless defendants met their
initial burden to prove a written agreement to arbitrate all
disputes. (Rosenthal, supra, 14 Cal.4th at p. 413; Trinity, supra,
16
78 Cal.App.5th at p. 1120.) The Endless defendants submitted
with Herbe’s declaration the arbitration agreement with
electronic signatures by Spencer and Zalazar (for Endless), with
an electronically generated record showing the agreement was
signed by Spencer on April 9, 2018. In addition, Herbe described
the electronic signature process and declared he was with
Spencer on April 9, 2018 when Spencer signed the agreement on
Herbe’s computer terminal.
The burden therefore shifted to Spencer to produce
evidence challenging the authenticity of the agreement. (Trinity,
supra, 78 Cal.App.5th at p. 1120; Gamboa, supra, 72 Cal.App.5th
at p. 165.) Spencer met this burden. In his declaration, he stated
he never signed or acknowledged any agreement to arbitrate, and
he explained there were technical difficulties with the BambooHR
software that prevented him from signing all the onboarding
documents on the day the documents were presented to him.
According to Spencer, his “managers” tried to fix the problem but
were unable to do so, and Spencer left without logging off his
account. When Spencer returned the next day to finish signing
the documents, the arbitration agreement was not among the
unsigned documents awaiting his signature. Spencer then signed
the remaining documents in his account that had not been
signed. He declared it was Herbe who signed the arbitration
agreement, noting Herbe stated he would sign the agreement for
him. Spencer added that he would not have signed the
17
arbitration agreement had it been presented to him when he
applied to work for Endless.5
The burden therefore shifted back to the Endless
defendants to establish admissible evidence of a valid arbitration
agreement. (Trinity, supra, 78 Cal.App.5th at p. 1120; Gamboa,
supra, 72 Cal.App.5th at p. 165.) In its June 30 order the trial
court recounted the evidence presented by the Endless
defendants and Spencer and concluded Spencer was telling the
truth that he did not sign the agreement. The question on
review, therefore, is whether the evidence presented by the
Endless defendants compels the conclusion Spencer signed the
arbitration agreement. (Trinity, at p. 1121; Gamboa, at p. 166;
Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at
pp. 1066-1067.) It does.
As discussed, the Endless defendants presented evidence
that Spencer signed the arbitration agreement, including Herbe’s
declaration and the electronically generated record showing
Spencer’s electronic signature was entered on the arbitration
agreement on April 9, 2018 at 10:28 a.m. Spencer did not argue
in the trial court and does not contend on appeal that the
5 As discussed, Spencer also stated he would not have signed
the arbitration agreement using his middle name. However,
although the agreement contains Spencer’s printed full name, his
signature does not include his middle name. Spencer argued
further in his opposition brief that his electronic signature on the
arbitration agreement was typed, not drawn, contrary to the
statement in Herbe’s declaration that the BambooHR system
allowed the employee to draw his or her signature on the
agreement. But Herbe clarified in his supplemental declaration
that the BambooHR system allowed an employee to draw or
apply a typed signature to the agreement.
18
BambooHR system time stamps for the employment documents
were incorrect, instead proffering his alternative explanation that
it was Herbe who signed the arbitration agreement on the date
and time reflected on the electronically generated record, and
because of a computer glitch, Spencer signed the remaining
employment documents the following day. But the Endless
defendants submitted evidence with their reply brief
contradicting Spencer’s version of events, including an
electronically generated record showing that as of April 11, 2018,
there were only three signed documents in Spencer’s personal
employment account, all electronically signed by Spencer on
April 9 or Zalazar on April 11: the arbitration agreement, a
disclosure and authorization form, and an acknowledgment of
receipt of the employee handbook.6 Herbe also attached to his
supplemental declaration seven Decision HR employment
documents electronically signed by Spencer, with electronically
generated records showing the documents were signed by
Spencer on April 20. Herbe declared all the documents bearing
Spencer’s signature were signed on April 9 or 20, 2018, not
April 10.
Spencer offers no explanation for how there are
electronically generated records showing Spencer’s signatures
were placed on the arbitration agreement and two additional
employment forms on April 9 and seven employment forms on
April 20, with none on April 10. Therefore, the Endless
defendants’ reply evidence disputing Spencer’s version of events
6 According to Herbe, the arbitration agreement in the folder
was added to Herbe’s personal employment account on April 11,
2018 because that is the date it was countersigned by Zalazar. A
fourth document in the folder was added on May 7, 2019.
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was “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.”’”
(Juen, supra, 32 Cal.App.5th at p. 979; accord, Trinity, supra,
78 Cal.App.5th at p. 1121.)
We recognize that under the compels-the-conclusion
standard, we presume the trial court found the losing parties’
evidence lacked sufficient weight and credibility to carry the
parties’ burden of proof. (Bookout v. State of California ex rel.
Dept. of Transportation, supra, 186 Cal.App.4th at p. 1486.) But
the trial court made clear in its June 30 order it had reached its
conclusion Spencer was “telling the truth about not signing”
based on the court’s “review of the evidence in the moving and
opposing papers.” The court emphasized in its factual findings
that there was no testimony presented by the Endless defendants
about when the documents were signed by Spencer or “testimony
about the computer glitch.” But there was. As discussed, Herbe
averred in his initial declaration that Spencer “electronically
signed the Arbitration Agreement [on April 9] at 10:28 a.m.” And
Herbe stated in his supplemental declaration that “there were no
‘technical difficulties’ with the BambooHR system” and Spencer
signed all three documents in his employee account on April 9
(not April 10), as shown by the electronic record.7 Although the
7 We acknowledge a plaintiff opposing a motion to compel
arbitration has no statutory opportunity to present evidence in
response to reply evidence submitted with the moving party’s
reply papers. However, Spencer has presented no evidence he
attempted to rebut the reply evidence by requesting an
opportunity to present additional evidence or challenging the
evidence at the hearing. And Spencer does not argue there is any
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compels-the-conclusion standard is “almost impossible” to meet,
the standard presumes the trial court found the losing party’s
evidence lacked sufficient weight and credibility to carry its
burden of proof. (Id. at p. 1486.) Where, as here, the court
clearly failed to consider all the evidence presented by the losing
parties, the standard is met if the losing parties present
uncontradicted and unimpeached evidence to support their
position. To hold otherwise would convert our review into a
rubber stamp of the trial court’s factual findings based on that
court’s incomplete review of the record despite unimpeached
evidence to the contrary. We therefore reverse the trial court’s
order denying the motion to compel arbitration.8
evidence in the record that rebuts the Endless defendants’
showing that all documents were signed on April 9 or 20, with
none signed on April 10.
8 Although Spencer raised procedural and substantive
unconscionability in his opposition to the motion to compel
arbitration, he does not address these arguments on appeal. He
has therefore forfeited any argument the agreement was
unconscionable and unenforceable. (Swain v. LaserAway Medical
Group, Inc. (2020) 57 Cal.App.5th 59, 72 [“‘“‘Issues not raised in
an appellant’s brief are [forfeited] or abandoned.’”’”]; Golden Door
Properties, LLC v. County of San Diego (2020)
50 Cal.App.5th 467, 555 [same].)
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DISPOSITION
The order denying the Endless defendants’ motion to
compel arbitration is reversed. The trial court is directed on
remand to vacate its order denying the motion to compel
arbitration and to enter a new order granting the motion. The
Endless defendants are to recover their costs on appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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