Opinion
B324631 B324633
01-11-2024
NORMAN MENJIVAR, Plaintiff and Respondent, v. TRUE BULLION LLC, et al., Defendants and Appellants RICARDO MENJIVAR, Plaintiff and Respondent, v. TRUE BULLION LLC, et al., Defendants and Appellants
Lewis Brisbois Bisgaard &Smith, Corinne C. Bertsche, Lann G. McIntyre and Steven G. Gatley for Defendants and Appellants. Vardapour Law Group and Patrick Vardapour for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, Nos. 21VECV00818, 21VECV00814 Valerie Salkin, Judge. Dismissed in part and affirmed in part.
Lewis Brisbois Bisgaard &Smith, Corinne C. Bertsche, Lann G. McIntyre and Steven G. Gatley for Defendants and Appellants.
Vardapour Law Group and Patrick Vardapour for Plaintiffs and Respondents.
BENDIX, J.
Before us are consolidated appeals of appellants True Bullion LLC, doing business as Gold Silver International, Gold Silver International Exchange, and/or GSI Exchange (GSIE); Subculture Services LLC (Subculture); Anthony Allen Anderson; and Agnes Viacrucis (collectively, appellants). Appellants contend the trial court erred in denying their motions to compel arbitration of the separately filed wage and hour claims of respondents Norman and Ricardo Menjivar. We dismiss appellants' appeal as to the motion to compel arbitration of Ricardo's claims as untimely. We affirm as to the denial of appellants' motion to compel arbitration of Norman's complaint under the deferential standard applicable to our review of the trial court's finding that appellants failed to show they had an agreement with Norman to arbitrate his claims against them.
For the sake of clarity, and meaning no disrespect, we refer to respondents Norman Menjivar and Ricardo Menjivar by their respective first names, and we refer to them collectively as respondents. Similarly, we respectfully refer to a GSIE official named Danielle Anderson and appellant Anthony Allen Anderson by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
We derive our Factual and Procedural Background in part from undisputed aspects of the trial court's rulings and admissions made by the parties in their appellate briefing. (See Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts provided in the trial court's ruling]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [" '[A] reviewing court may make use of statements [in briefs and argument] . . . as admissions against the party [advancing them].' "].)
We summarize only those facts pertinent to our disposition of these consolidated appeals.
GSIE and Subculture are engaged in the business of selling precious metals, including gold and silver coins. According to appellants, Subculture is an affiliate of GSIE that provides marketing for GSIE's products and generates leads for its salespeople. Appellant Anthony attests that he is the owner and sole controlling member of GSIE, and that he oversees GSIE's day-to-day operations, including hiring and managing sales personnel. Respondents aver that appellant Viacrucis is GSIE's and/or Subculture's chief accounting officer and/or director of human resources.
Norman alleges he was employed by GSIE, Subculture, and/or Anthony from December 3, 2018 until March 2021. Ricardo avers he was employed by GSIE, Subculture, and/or Anthony from August 22, 2018 until late March 2021. Norman and Ricardo allege they were terminated without receiving their respective final paychecks and other Labor Code violations occurred during their employment. Appellants claim Norman and Ricardo were independent contractors and not employees.
In June 2021, Norman and Ricardo filed their respective complaints alleging the following 14 causes of action: (1) failure to provide employee/personnel records; (2) breach of written contract; (3) breach of oral contract; (4) breach of implied-in-fact contract; (5) common count (services rendered); (6) illegal deductions from wages; (7) fraud; (8) receipt of stolen property; (9) failure to pay wages for missed meal periods; (10) failure to pay wages for missed rest periods; (11) failure to provide accurate, itemized wage statements; (12) waiting time penalties; (13) violation of the Unfair Business Practices Act/the Unfair Competition Law; and (14) defamation. Norman also avers a 15th cause of action for failure to pay the minimum wage.
In November 2021, appellants moved to compel Norman and Ricardo to arbitrate their complaints. Appellants argued that shortly after they were hired, Norman and Ricardo had each electronically signed two agreements to arbitrate. Norman and Ricardo opposed appellants' motions to compel.
On July 28, 2022, the trial court denied appellants' motion to compel Ricardo to arbitrate his claims, and the court denied appellants' motion as to Norman on August 2, 2022. Although the court found appellants had failed to show by a preponderance of the evidence that Norman had electronically signed the two arbitration agreements, the court found appellants had successfully demonstrated that Ricardo had electronically signed the documents.
As to both Norman and Ricardo, the court found that the arbitration agreements are not governed by the Federal Arbitration Act (FAA), and that the agreements are unconscionable. Regarding the latter ruling, the court found the agreements exhibit a "modest" degree of procedural unconscionability because they are pregenerated, standardized contracts for which Norman and Ricardo had no "real opportunity for discussion or negotiation," and the arbitration rules are not attached to the agreements. The court determined that three aspects of the arbitration agreements are substantively unconscionable: (1) provisions allowing appellants to recover their attorney fees if they prevail in a civil action or an arbitration; (2) the agreements deprive Norman and Ricardo of their rights to have their wage claims be heard before the Labor Commissioner; and (3) the agreements permit GSIE to seek extraordinary relief in a federal or state court, whereas the contracts do not provide that Norman and Ricardo may request extraordinary relief in a judicial forum. The court noted that its findings that the arbitration agreements possess a "high degree of substantive unconscionability . . . and some degree of procedural unconscionability . . . warrant[ed] the denial" of appellants' motions to compel.
Before passing upon Norman's unconscionability defense, the trial court assumed "[f]or the sake of argument" that appellants "had submitted sufficient proof . . . authenticating [Norman's] signatures ...." Nevertheless, the court clarified that appellants' failure to satisfy their burden of showing that Norman had signed the agreements, standing alone, was a sufficient basis for the court's denial of the motion.
On November 14, 2022, appellants filed notices of appeal, seeking review of the trial court's orders denying their motions to compel Norman and Ricardo to arbitrate their complaints.We later granted the parties' joint motion to consolidate the two appeals.
We address whether appellants timely filed their notices of appeal in Discussion, part A, post.
DISCUSSION
A. We Grant Ricardo's Motion To Dismiss as Untimely Appellants' Appeal as to Arbitration of His Complaint But Deny Norman's Motion To Dismiss Appellants' Appeal as to Arbitration of His Complaint
Respondents move to dismiss as untimely the instant consolidated appeals of the trial court's orders denying appellants' motions to compel arbitration. Although we conclude the appeal concerning Ricardo's case is untimely, appellants timely appealed the order denying their motion to compel Norman to arbitrate his claims. We thus grant in part and deny in part the motion to dismiss.
Presiding Justice Rothschild issued an order deferring ruling on this motion to the panel.
1. Applicable law
" 'Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citations.] If a notice of appeal is not timely, the appellate court must dismiss the appeal.' [Citations.] California Rules of Court, rule 8.104(a)(1), contains the applicable time period for filing a notice of appeal." (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842.) Rule 8.104(a)(1) provides in pertinent part: "[A] notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment." (Rule 8.104(a)(1).) "Service under [rule 8.104(a)](1)(A) and (B) may be by any method permitted by the Code of Civil Procedure ...." (Rule 8.104(a)(2).) "As used in rule 8.104](a) . . ., 'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(e).)
All unspecified rule references are to the California Rules of Court.
"The denial of a motion to compel arbitration is an appealable order." (Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 176; see also Code Civ. Proc., § 1294, subd. (a) ["An aggrieved party may appeal from: [¶] . . . An order . . . denying a petition to compel arbitration."].)
As a general rule, "no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b).) Our high court has recognized" 'the well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases "when such can be accomplished without doing violence to applicable rules."' [Citations.]" (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 (Alan).) This "principle of construction applies when courts are called upon to resolve ambiguities in rules that limit the right to appeal, such as rule 8.104(a)(1)." (Alan, at p. 902.)" 'Because the time limits for filing a notice of appeal are jurisdictional, we must apply [rule 8.104(a)(1)] . . . strictly and literally according to its terms; the rules "must stand by themselves without embroidery."' [Citations.] Thus, courts have consistently held that the required 'document entitled "Notice of Entry"' [citation] must bear precisely that title, and that the 'file-stamped copy of the judgment' [citation] must truly be file stamped. [Citations.]"(Alan, at pp. 902-903.)
The current version of rule 8.104(a)(1) provides that service of a "filedendorsed copy of the judgment" may commence the 60-day deadline for filing a notice of appeal. (See rule 8.104(a)(1)(A)-(B), italics added.) The parties do not contend this textual change signifies that service of a filedstamped copy of the document would no longer satisfy rule 8.104(a)(1)(A) and (B). (See also Valero Refining Co.-California v. Bay Area Air Quality Management Dist. Hearing Bd. (2020) 49 Cal.App.5th 618, 633 (Valero Refining Co.-California) [intimating that a file-stamped copy of a judgment was "filed-endorsed" for the purposes of the current version of rule 8.104(a)(1)].)
2. Appellants did not appeal the order denying their motion to compel Ricardo to arbitration within 60 days of being served with a filed-endorsed copy of that ruling
Because resolution of the jurisdictional issue before us turns on whether certain documents served on the parties satisfy rule 8.104(a)(1)(B), we describe below those documents at length.
In support of their motion to dismiss, respondents' counsel submitted a declaration attesting: "On August 1, 2022, [Ricardo] served by electronic means upon the [appellants] a document titled 'NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION' . . . containing a copy of the court's 23-page filed-stamped and signed . . . Ruling on Submitted Matter[,] . . . along with [Ricardo's] own proof of service.... [Ricardo] filed his Notice of Ruling in court on the same day, August 1, 2022." The attorney further testified, "Attached as EXHIBIT '2' [to the declaration] . . . is a true and correct copy of [Ricardo's] Notice of Ruling served on [appellants] and filed with the court."
The first two pages of Exhibit 2 to counsel's declaration (Exhibit 2) are a document titled "NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION," which document bears the caption for Ricardo's case. (Boldface omitted.) This document states that appellants' motion was heard on July 20, 2022, and that, "[a]fter hearing from counsel, and taking the matter under submission, the Court ruled as noted in the attached RULING ON SUBMITTED MATTER: DEFENDANT TRUE BULLION'S MOTION TO COMPEL ARBITRATION." The next item in Exhibit 2 is a 23-page document titled, "RULING ON SUBMITTED MATTER: DEFENDANT TRUE BULLION'S MOTION TO COMPEL ARBITRATION," which also bears the caption for Ricardo's action. The first page of this document has a filed stamp from the trial court clerk indicating the document is a conformed copy of the original that was filed on July 28, 2022. The last page of the ruling states that appellants' "motion to compel Ricardo . . . to arbitrate his complaint is DENIED," and contains a signature line that is stamped with the trial judge's name. The last two pages of Exhibit 2 consist of a document titled "PROOF OF SERVICE," which indicates that on August 1, 2022, respondents' attorney electronically served the "NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION" on attorneys identified therein as appellants' counsel.
Appellants do not controvert this evidence that on August 1, 2022, respondents electronically served appellants with the contents of Exhibit 2, that is, (1) the "NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION," (2) the file-stamped "RULING ON SUBMITTED MATTER: DEFENDANT TRUE BULLION'S MOTION TO COMPEL ARBITRATION" that contains a stamp as the judge's signature, and (3) the proof of service accompanying those documents. It appears that service of the contents of Exhibit 2 on appellants on August 1, 2022 triggered rule 8.104(a)(1)(B)'s 60-day deadline to file a notice of appeal, given that this Exhibit contains "a filed-endorsed copy of the [appealable order], accompanied by proof of service ...." (See rule 8.104(a)(1)(B); see also rule 8.104(e) [providing that an appealable order is a "judgment" for the purposes of this rule].) Yet, appellants filed their notice of appeal on November 14, 2022 (Factual &Procedural Background, ante), which was more than 60 days after August 1, 2022. Unless appellants can demonstrate they filed a timely appeal in Ricardo's case, we must dismiss their appeal in that case for lack of jurisdiction. (See In re A.R. (2021) 11 Cal.5th 234, 255, fn. 5 ["' "If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal."' "]; Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 721 [indicating that an appellant's "burden of demonstrating reversible error" includes an obligation to rebut a respondent's showing that the appellate court lacks jurisdiction]; cf. rule 8.54(c) [providing that the Court of Appeal may grant a motion on account of a party's failure to oppose it].)
(See People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 582, fn. 2 (One Parcel of Land) [indicating that service of a file-stamped order bearing the judge's "signature stamp" may trigger the "60-day deadline for filing a notice of appeal"].)
Exhibit 2 also contains a certificate of mailing from the trial court clerk that is not pertinent to our disposition of Ricardo's motion to dismiss.
Appellants contend respondents' electronic service of the contents of Exhibit 2 on August 1, 2022 did not start the 60-day appeal deadline because the proof of service identifies the document served as only the "NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION," and does not mention the "RULING ON SUBMITTED MATTER: DEFENDANT TRUE BULLION'S MOTION TO COMPEL ARBITRATION." Specifically, appellants argue, "[T]he plain language of rule 8.104(a)(1)(B) requires parties to serve a copy of the order itself[,] . . . accompanied by proof of service of that specific document." In support of this position, appellants maintain that "[a] proof of service is adequate" under Code of Civil Procedure section 1013b, subdivision (a)(1) "if it sets forth the exact title of the document served and filed in the cause." Appellants also suggest that the Fifth District's decision in Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 51, supports their interpretation of rule 8.104(a)(1)(B) and Code of Civil Procedure section 1013b, subdivision (a)(1).
Rule 8.104(a)(1)(B), by its terms, provides that the "filed-endorsed copy of" the appealable order must be "accompanied by proof of service ...." (See rule 8.104(a)(1)(B).) The rule does not state that a proof of service must identify every attachment included with the document that has been served upon a party. (See ibid.) Nor does the text of Code of Civil Procedure section 1013b, subdivision (a)(1) include any such requirement. Rather, the latter provision merely requires that the proof of service "set[ ] forth the exact title of the document served and filed in the cause ...." (See Code Civ. Proc., § 1013b, subd. (a)(1).) The proof of service included in Exhibit 2 satisfies this requirement, given that it identifies the "NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION" as the document served, which corresponds precisely with the title provided on the first page of Exhibit 2. (See also Alan, supra, 40 Cal.4th at p. 905 [observing that two documents may constitute a "single[ ]document" if one is attached to the other because "a document can have multiple pages"].)
Indeed, during the trial court proceedings, appellants did not follow the reading of Code of Civil Procedure section 1013b, subdivision (a)(1) that they now contend should defeat Ricardo's motion to dismiss, that is, that this subsection requires the proof of service to identify all attachments to the document that is being served. On September 8, 2022, appellants electronically served a document titled "[PROPOSED] ORDER AND ENTRY OF ORDER," which apparently sought an order reentering a July 28, 2022 minute order that appellants had identified as "an Order denying [Appellants'] Motion to Compel Ricardo Menjivar to arbitrate his complaint." Although appellants attached the July 28, 2022 minute order to their "[PROPOSED] ORDER AND ENTRY OF ORDER," their proof of service identified only the latter document (not the attached minute order) as having been electronically served.
The trial court's docket shows that the July 28, 2022 minute order and the corresponding written ruling on appellants' motion to compel arbitration were filed on July 28, 2022, and the trial court confirmed in the July 28, 2022 minute order that the written ruling had been signed and filed on that date. Accordingly, although the trial court ultimately signed and filed the aforesaid proposed order seeking reentry of the minute order on September 13, 2022, that filing did not restart the 60-day deadline to appeal the denial of appellants' motion. (See Estate of Reed (2017) 16 Cal.App.5th 1122, 1127 [" 'The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision.' "]; rule 8.104(c)(2) ["[I]f the minute order directs that a written order be prepared, the entry date [of an appealable order] is the date the signed order is filed."].)
Thiara does not assist appellants either. In that case, "the copy of the judgment respondents mailed to appellants . . . was not accompanied by a proof of service ...." (Thiara, supra, 182 Cal.App.4th at p. 58.) Rather, the judgment was accompanied by a "cover letter" from an attorney that "did not state for appellants under oath the date on which the judgment was placed in the mail for service on appellants." (Id. at p. 57.) The Court of Appeal held that this cover letter was not sufficient to "commence the 60-day period for filing a notice of appeal."(Thiara, at pp. 57-58.) The Thiara court thus had no occasion to determine whether each attachment to a document must be listed in a proof of service accompanying a filed-endorsed copy of a judgment or appealable order. (See Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 85, fn. 4 [" '[C]ases are not authority for propositions that are not considered.' "].)
Conversely, the proof of service accompanying the instant notice of ruling provides the date of service and was executed under oath.
Lastly, appellants contend, "[T]he ruling[ ] on submitted matter [was] at best ambiguous as to whether [its] service would have triggered defendants' 60-day period to appeal," and "[s]uch ambiguities" should be resolved in appellants' favor. As we explained above, appellants have not shown that any ambiguity exists in rule 8.104(a)(1)(B) or Code of Civil Procedure section 1013b, subdivision (a)(1) that could be construed to render their appeal timely. (See Thiara, supra, 182 Cal.App.4th at p. 57 ["Only when the language is reasonably susceptible of more than one meaning is judicial construction warranted."].)
It bears repeating that (1) the title of the document referenced in the proof of service-"NOTICE OF RULING ON DEFENDANTS' MOTION TO COMPEL ARBITRATION AND STAY ACTION"-explicitly references the ruling on appellants' motion, and (2) the second page of that notice correctly informs the reader that the "RULING ON SUBMITTED MATTER: DEFENDANT TRUE BULLION'S MOTION TO COMPEL ARBITRATION" is attached to that document. Under these circumstances, appellants were not required to "guess, at their peril, whether such documents . . . trigger[ed] the duty to file a notice of appeal." (See Alan, supra, 40 Cal.4th at p. 905; ibid. [indicating that rule 8.104(a)(1) ought to be interpreted such that" '[n]either parties nor appellate courts should be required to speculate about jurisdictional time limits' "].)
In sum, we lack jurisdiction to review the trial court's order denying appellants' motion to compel Ricardo to arbitrate his complaint and thus dismiss appellants' appeal in Ricardo's case.
3. Appellants timely appealed the order denying their motion to compel Norman to arbitrate his complaint
Respondents argue that the 60-day deadline to appeal the order denying appellants' motion to compel Norman to arbitrate his complaint commenced on either (1) August 2, 2022, the date they claim the trial court clerk served the parties with a certificate of mailing, an August 2, 2022 minute order, and a file-stamped ruling on appellants' motion; or (2) on August 8, 2022, the date on which Norman claims to have served appellants with a notice of ruling on that motion, the August 2, 2022 minute order, and the file-stamped ruling. Respondents contend that because appellants filed their notice of appeal on November 14, 2022, which was more than 60 days after August 2, 2022 and August 8, 2022, their appeal of the ruling from Norman's case is untimely.
Because neither the trial court clerk nor Norman served appellants with any document that had the phrase "Notice of Entry" in its title, the applicability of the 60-day deadline for appealing the order denying appellants' motion hinges on whether they were served with a "filed-endorsed copy" of the order. (See rule 8.104(a)(1)(A)-(B); see also Alan, supra, 40 Cal.4th at p. 903 ["[C]ourts have consistently held that the required 'document entitled "Notice of Entry"' [citation] must bear precisely that title."].)
The file-stamped written ruling that respondents assert was served on appellants does not bear the trial judge's signature or signature stamp. Rather, the line designated for the trial judge's signature at the conclusion of the written ruling is blank. Because rules 8.104(a)(1)(A) and (B) require "notice that a completed order had been entered" and the absence of the trial judge's signature or signature stamp rendered the written ruling "incomplete," "the service of the incomplete copy did not commence the appeal deadline." (See One Parcel of Land, supra, 235 Cal.App.3d at p. 582, fn. 2 [construing former rule 2(a)]; see also Alan, supra, 40 Cal.4th at p. 897, fn. 1 [observing that former rule 2 is the predecessor of rule 8.104].)
Because we conclude that service of the unsigned written ruling for Norman's action could not trigger the 60-day deadline to file a notice of appeal, we do not address appellants' assertion that "[t]here is no evidence the clerk served [them] with the ruling."
Respondents further claim Norman and the trial court clerk had served appellants with the August 2, 2022 minute order for Norman's case. The minute order does not bear a filed stamp or any other notation from the court clerk indicating that it was "filed-endorsed" for the purposes of rule 8.104(a)(1)(A) or (B). In short, service of the minute order on appellants did not commence the 60-day deadline for them to appeal. (See Valero Refining Co.-California, supra, 49 Cal.App.5th at p. 633 [indicating a file-stamp from the trial court clerk satisfies the "filed-endorsed" requirement of rule 8.104(a)(1)]; see also City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 186 & fn. 11 [concluding that the trial court clerk had "filed-endorsed" a copy of an order by affixing a stamp containing (1) the word" 'Endorsed[,]'" (2) the date, (3) the trial judge's name, (4) the clerk of the court's name, and (5) a deputy clerk's name].)
Respondents argue, "[A]n unsigned minute order starts the 60-day[ ] deadline to file an appeal." Neither of the cases they cite for this proposition address whether unsigned minute orders constitute filed-endorsed orders for the purposes of rule 8.104(a)(1)(A) or (B). Rather, each decision merely holds that the unsigned minute order at issue therein was directly appealable. (See In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406, 1408, 1410-1411 [holding than an unsigned minute order denying a request to unseal court records and open any further proceedings to the public was appealable]; In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1523-1525 [holding that an unsigned minute order denying a request for sanctions was appealable].)
Respondents do not claim that after Norman allegedly served appellants with the aforementioned documents on August 8, 2022, the trial court clerk or a party had served upon the parties a filed-endorsed copy of the order denying appellants' motion to compel Norman to arbitrate his claims. Further, respondents do not claim that a "Notice of Entry" of the order on appellants' motion was served upon the parties before appellants ultimately served respondents with a Notice of Entry on September 20, 2022. Respondents acknowledge that the August 2, 2022 minute order denying appellants' motion was attached to that Notice of Entry, and the record reveals the Notice of Entry was accompanied by a proof of service. Since appellants filed their notice of appeal of the order denying their motion vis-a-vis Norman within 60 days of September 20, 2022 (i.e., they appealed on November 14, 2022), their appeal of that order is timely. (Rule 8.104(a)(1)(B) ["[A] notice of appeal must be filed on or before the earliest of: [¶] . . . 60 days after the party filing the notice of appeal serves . . . a document entitled 'Notice of Entry' of judgment[,] . . . accompanied by proof of service."].) For that reason, we deny the motion to dismiss the appeal of that order.
B. Applying the Deferential Standard of Review Governing Appellants' Claim of Error, We Conclude the Trial Court Did Not Err In Finding Appellants Failed To Demonstrate That Norman Signed the Alleged Arbitration Agreements
In its order denying appellants' motion to compel Norman to arbitrate his complaint, the trial court found appellants failed to demonstrate the existence of an arbitration agreement between Norman and appellants. In particular, the court found appellants had not shown by a preponderance of the evidence that the electronic signatures on the arbitration agreements proffered by appellants "were executed by Norman." Appellants challenge this finding.
Before addressing the merits of appellants' claim of error, we discuss the applicable law and standard of review, and summarize the trial court's ruling. Because the trial court did not err in finding that appellants failed to show the existence of an agreement to arbitrate between Norman and appellants, we affirm the order denying the motion to compel without addressing appellants' other claims of error. (See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165 (Gamboa) [" '[T]he existence of [an arbitration] agreement is a statutory prerequisite to granting the [motion or] petition [to compel arbitration]."].)
Specifically, appellants claim the trial court erred in (1) finding the arbitration agreements to be unconscionable, (2) declining to sever or limit application of the allegedly unconscionable terms, (3) finding the FAA does not apply to the arbitration agreements, and (4) assuming arguendo the court did not err in finding the FAA inapplicable, declining to grant the motion as to Norman's nonwage claims.
1. Applicable law and standard of review
" 'In ruling on a motion to compel arbitration, the trial court shall order parties to arbitrate "if it determines that an agreement to arbitrate the controversy exists ...." [Citation.] "[T]he party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any defense ...." [Citation.]' ....[Citation.]" (Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 662.)
"The burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party ...." (Gamboa, supra, 72 Cal.App.5th at p. 164.) "However, the burden of production may shift in a three-step process. [¶] First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.] The moving party '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.' [Citation.] . . . For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]" (Id. at p. 165.)
"If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. [Citation.] . . . For example, the opposing party may . . . declare under penalty of perjury that . . . the party never signed . . . the agreement." (Gamboa, supra, 72 Cal.App.5th at p. 165.)
"If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties." (Gamboa, supra, 72 Cal.App.5th at p. 165.) The moving party must "prov[e] the agreement by a preponderance of the evidence . . . ." (See id. at pp. 165-166.)
Civil Code section 1633.9, subdivision (a) governs electronic signatures. This provision states: "An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable." (Civ. Code, § 1633.9, subd. (a).)
" '" 'There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.'"' [Citation.] [¶] . . . [¶] Where the decision 'is based on the court's finding that [the party seeking arbitration] failed to carry its burden of proof, the question for the reviewing court is whether that finding is erroneous as a matter of law.' [Citation.] '" 'Specifically, the question becomes whether appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '"' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 166.) Put differently, an appellant is" 'required to establish that its evidence compelled a finding in its favor as a matter of law.'" (See id. at p. 170.)
" '" '[W]here, as here, the judgment is against the party who has the burden of proof, it is almost impossible for [that party] to prevail on appeal by arguing the evidence compels a judgment in [that 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 [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.'"' [Citation.]' "The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.]' "All conflicts, therefore, must be resolved in favor of the respondent." '"' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at pp. 166-167.)
Appellants assert that Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, concluded that "a de novo [standard] applies when the trial court rules that [a] defendant failed to carry its burden to prove the authenticity of [a] plaintiff's electronic signature on [a] Contract" because that is "a question of law." Fabian does not support this proposition. Rather, Fabian employed the deferential appellate standard we recite in this section of our opinion. (See Fabian, at p. 1067 ["' "[T]he 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.'"' "]; id. at pp. 1063, 1070 ["To prevail on appeal, [appellant] was required to establish that its evidence compelled a finding in its favor as a matter of law."].)
"' "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." [Citation.]' [Citation.] Thus, '" 'it is the appellant's responsibility to affirmatively demonstrate error'"' by '" 'supply[ing] the reviewing court with some cogent argument supported by legal analysis and citation to the record.'" [Citation.]' [Citations.] The appellant bears this burden of rebutting the presumption of correctness accorded to the trial court's decision, regardless of the applicable standard of review. [Citations.]" (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 776-777 (Association for Los Angeles Deputy Sheriffs).)
2. The trial court found appellants failed to show by a preponderance of the evidence that Norman signed the arbitration agreements
We now detail certain relevant aspects of the trial court's ruling.
In support of their motion, appellants "submit[ted] two documents as evidence of [Norman's] agreement to arbitrate his complaint: (1) the 'GSIE INDEPENDENT CONTRACTOR AGREEMENT' (the IC Agreement); and (2) the 'NON-DISCLOSURE/NON-CIRCUMVENTION/NON-COMPETITION AGREEMENT' (the NDA)." Paragraph 8 of the IC Agreement provides: "Arbitration of Grievances. The Parties agree that unless specifically provided to the contrary in this Agreement, any Grievance shall be resolved exclusively by binding Arbitration." Paragraph 5 of the NDA includes the same provision.
Appellants presented evidence that: Norman's electronic signature appeared on the signature page for each document, Norman's electronic initials were on the bottom left corner of each page of the IC Agreement and NDA (except for the signature pages), and Norman's "e-signatures were completed using DocuSign technology" "on December 10, 2018, one week after [Norman] began working for [appellants] on December 3, 2018." Because Norman had "insist[ed] via declaration that he did not sign the IC Agreement and the NDA," the court concluded the burden shifted back to appellants to demonstrate that Norman had signed the agreements.
Appellants had introduced "evidence of the process [Norman] purportedly used to sign [the IC Agreement and NDA], including the DocuSign process." In particular, appellants "submit[ted] the declaration of Danielle[,. . . GSI[E]'s director of IRA processing, who ....indicate[d] that IC Agreements and NDA contracts are generated when she personally uploads a document to DocuSign, then sends a link to the document through DocuSign to the 'private unique email address' belonging to the recipient, in this case [Norman]. The recipient then electronically signs the document using a link in the email they received at their individual email address, and the signed document is returned to Danielle[,] . . . also by direct email."
As we mentioned in footnote 1, ante, we refer to this individual by only her first name because she has the same surname as appellant Anthony Allen Anderson.
The court found, "[Danielle's] declaration is by itself insufficient to authenticate [Norman's] signatures." In support of this conclusion, the court explained, "There is nothing in [Danielle's] declaration or anywhere else in [appellants'] volumes of evidence which indicates that [Norman] was the only individual who could access the mail which was sent to the 'private unique email address' created for him by [appellants]." The court noted, "It is common knowledge that employers maintain access to employee email accounts," and found that, by stating in his declaration that appellants "terminated [Norman's] 'access to the GSI[E] user accounts' upon his termination," Norman had "indicated [that appellants had] control over employees' online accounts." Because the trial court had observed that Anthony is "the owner and sole controlling member of" GSIE who "oversees [GSIE's] day-to-day operations, including hiring and managing sales personnel such as [Norman,]" the ruling suggests that Anthony was one of the individuals who had control over Norman's e-mail account.
The court further stated there was no evidence "indicat[ing Norman] had exclusive access to the link to complete his onboarding paperwork, e.g., any password protocol for [Norman] to use to access his onboarding paperwork; [Norman] was simply sent a link to his unique email account, which he was to click, and clicking the link accessed his onboarding documents without further identification or security." Although Danielle had declared that" '[a]ccess to the DocuSign account is secured by a unique username and password,'" "she also [stated] access is shared between four individuals: . . . Danielle[,] . . . Anthony[,] . . . and two unascertained individuals."
Anthony's potential involvement in the electronic signature process is of particular significance to this case, given the trial court's finding that Anthony "intentional[ly] submi[tted]" "falsified records" in support of the motion to compel. Specifically, Anthony initially submitted a declaration in which he claimed that the documents attached thereto were" 'true, correct, and complete'" copies of the IC Agreement and NDA; those documents had Norman's "e-signature at the bottom of the documents, next to the timestamped e-signatures of Anthony."
Yet, "after [Norman] submitted his brief opposing the motion to compel arbitration," Anthony filed a second declaration in which he "admitted he never used DocuSign to sign the contracts at issue." Anthony asserted that after Norman had signed the agreements, Anthony manually signed printed copies of them. Anthony asserted he" 'believe[d]'" the copies bearing his "wet signature" were" 'in [his] stored files in California, [but claimed he had] been unable to retrieve [them] because [he] now reside[s] and work[s] in Florida.'" Anthony alleged that when he later electronically accessed the agreements in DocuSign, he discovered that they "had been marked 'Voided' because [he] did not sign them in the system and due to lack of activity in the document." Anthony admitted he had the "Voided" watermark "removed" from the documents and affixed his e-signatures thereto, and that these altered documents were then attached as exhibits to his initial declaration. Anthony stated that he attached to his supplemental declaration the" 'true and correct' copies of" the aforesaid" 'Voided'" versions of the documents that Anthony previously accessed which did not contain his electronic signatures.
The trial court stated it was "puzzled as to why, in the eight months after [appellants'] motion was filed, nobody ha[d] been able to check [Anthony's] files in California for the versions of [Norman's] IC Agreement and NDA which include [Anthony's] wet signature." The court further remarked, "[I]t is evident from [Anthony's] testimony that for the nearly one-month period between when [Anthony] filed his original and supplemental declarations, he (as well as the rest of [appellants and appellants'] counsel) was content to allow the Court and opposing counsel to remain under the incorrect understanding that [appellants] had evidence of . . . contracts[ ] executed by both [Anthony] and [Norman] via DocuSign."
The court remarked that Anthony's "knowing submission of [Norman's] falsified records as 'true and correct' under oath is problematic." In particular, the court found "good cause to strictly construe [Anthony's] declaration testimony when it is supported by other evidence" and to "view[ Anthony's testimony] with skepticism" "where it is not supported by any other evidence ...." Thus, fairly construed, the court's ruling indicates it had found that an individual of doubtful credibility, who knowingly submitted falsified evidence, could have accessed the link used to affix Norman's electronic signature to the IC Agreement and NDA.
Furthermore, the trial court indicated it believed the circumstances of Norman's alleged execution of the agreements further undermined appellants' position. Although appellants offered evidence showing that the agreements were "signed a week after [Norman] started working for [appellants,]" appellants "presented no explanatory evidence by which the Court would understand why [Norman] would be signing his onboarding documents [on that date] rather than on . . . the date he began work." The court also stated it was "concerned that the evidence indicates" that the documents were "open for less than two minutes before [they were] purportedly signed by [Norman] and returned to [Danielle]."
Appellants argue in their reply that "[t]he one week delay only tends to show that it took additional time for the parties to complete and execute pertinent documents pertaining to [Norman's] employment-that's it." Not only do appellants fail to raise this argument in their opening brief, they also do not support this belated argument with any citation to the record. Accordingly, we decline to consider this argument. (See Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 482, 518 [concluding that an appellant "forfeited [a] point" "[b]y not raising [it] in [the] opening brief"]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590, fn. 8 ["[C]ourts will decline to consider any factual assertion unsupported by record citation at the point where it is asserted."].)
The trial court closed its analysis of this issue by stating, "The foregoing evidence is insufficient to show by a preponderance that the e-signatures on the IC Agreement and the NDA were executed by [Norman]. The IC Agreement and the NDA . . . are deemed unauthenticated, and there is no agreement to arbitrate for the Court to enforce."
3. Appellants do not demonstrate the trial court erred in finding they failed to satisfy their burden of proof
Applying the three-step burden shifting analysis in our Discussion, part B.1, ante, appellants assert they "clearly met their initial burden of establishing the existence of the arbitration agreement[s,]" but they acknowledge that Norman "satisfied his burden" of contesting authenticity by "submitting a declaration claiming he did not sign the agreements." They maintain the trial court "erroneously found that [appellants] did not satisfy their further burden of showing by a preponderance of the evidence that [Norman's] signature is authentic."
First, appellants argue the "trial court found similar evidence presented by [appellants] sufficient to meet their burden of establishing the authenticity of [Ricardo's] electronic signature on the agreements." Appellants insist that "[t]he only difference[s] in evidence presented for [Norman are] that 1) [Norman] signed the documents 2 minutes after viewing, contrasted with [Ricardo] signing 2 hours after opening the documents; and 2) [Norman] received and signed the documents one week after being hired, contrasted with [Ricardo's] receipt of the documents the following day after he was hired."
As explained in our Discussion part A, ante, however, we lack jurisdiction to review the trial court's ruling on appellants' motion to compel Ricardo to arbitrate his complaint. Appellants do not argue, let alone offer authority demonstrating, that they may impugn the trial court's ruling with findings from an unreviewable order issued in a lawsuit initiated by a different plaintiff. Accordingly, we do not address this contention further. (See Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956 ["' "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."' "].)
Next, appellants contend, "[T]he fact that the documents were signed two minutes after opening does not tend to indicate that the person who opened them did not review them, or that [Norman] was not the person who electronically signed the documents." They insist "the documents were not lengthy and [could have been] easily reviewed in a couple minutes" because the documents totaled no more than 13 pages, and that "[i]t is not uncommon for people to review and electronically sign immediately after opening the documents." Appellants further maintain "[t]here is no evidence . . . that anyone else accessed [Norman's e-mail] account to sign these documents or that anyone else ever had access to his unique email account." Additionally, appellants claim that because "[n]o dispute had arisen at th[e] time" Norman's e-signature was added to the documents, "there was no reason for anyone else at the company to access his email account to sign these documents."
In advancing these arguments, appellants overlook (1) the court's observation that "[i]t is common knowledge that employers maintain access to employee email accounts"; (2) the court's finding that Norman's declaration testimony indicated appellants had control over his online accounts; (3) the court's observation there was no evidence that Norman "had exclusive access to the link to complete his onboarding paperwork, e.g., any password protocol for [Norman] to use to access [the] paperwork"; (4) the court's recognition that four individuals, including Anthony, had access to the DocuSign account controlling the electronic signature process; and (5) the court's findings that Anthony, who is GSIE's owner, controlling member, and official responsible for hiring and managing sales personnel, knowingly altered the IC Agreement and NDA and falsely represented to the court that they were true and correct copies of those documents.
Furthermore, appellants do not dispute, and thereby tacitly agree with, respondents' assertion that appellants demonstrated they had access to Norman's e-mail account when they submitted to the trial court "the specific email [Norman] allegedly received in his inbox containing the link to sign the NDA and IC Agreement." (Italics omitted.) (See Association for Los Angeles Deputy Sheriffs, supra, 94 Cal.App.5th at pp. 773-774 [holding that appellants tacitly conceded a point from a respondents' brief by "failing to dispute it in their reply"].) Thus, the parties' appellate briefing further suggests that shortly after Norman was hired, Anthony could have affixed Norman's esignature to the agreements by accessing the DocuSign link sent to Norman's e-mail account. Further, appellants do not claim they were able to access Norman's e-mail account only after he was terminated.
Based on the aforesaid uncontroverted trial court findings, the additional evidence of appellants' access to Norman's e-mail account, and Norman's testimony that he did not sign the IC Agreement or the NDA, a factfinder reasonably could have suspected that a party who had deliberately tampered with the agreements (Anthony) could also have added Norman's electronic signatures to the arbitration agreements. For all these reasons, we cannot conclude the trial court erred as a matter of law in finding that appellants had failed to show Norman was more likely than not the individual who signed the IC Agreement and the NDA. (See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1305, fn. 28 [noting that "the preponderance standard" is synonymous with" 'more likely than not' "].) Further, because we are not at liberty to"' "substitute [our] factual determinations for those of the trial court" '" or" '" 'reweigh the evidence'" '" (see Gamboa, supra, 72 Cal.App.5th at p. 166), the possibility that Norman could have signed the documents in less than two minutes and the absence of evidence of a motive for Anthony to forge Norman's e-signature at that time are not fatal to the trial court's finding.
Lastly, appellants contend that "[Michael] Newman, an IT Consultant, . . . explained there was nothing unusual to indicate[ ] that someone other than [Norman] electronically signed the documents." Specifically, Newman attested that because GSIE has "a single public IP address," "[t]here is nothing unusual or unexpected in" the fact that DocuSign's records show that this single public IP address was used to (1) generate the documents for Norman to sign, and (2) electronically affix Norman's signature to them. Newman further declared, "This fact does not indicate that someone else signed the document aside from the individual indicated under 'Signer Events'" in DocuSign's records, that is, Norman. Be that as it may, because Newman did not offer any testimony demonstrating that only Norman could have added his electronic signatures to the IC Agreement and the NDA, Newman's declaration does not undermine the trial court's conclusion that appellants failed to establish that Norman had signed them.
In sum, appellants have not achieved the" '" 'almost impossible'" '" feat of demonstrating that their" 'evidence compelled a finding in [their] favor as a matter of law.....' [Citation.]" (See Gamboa, supra, 72 Cal.App.5th at pp. 166, 170.)
DISPOSITION
We grant respondents' motion to dismiss case number B324633 as untimely, and we deny respondents' motion to dismiss case number B324631. We affirm the order denying the motion to compel respondent Norman Menjivar to arbitrate his complaint (case no. B324631). Respondents are awarded their costs on appeal.
We concur: ROTHSCHILD, P. J., CHANEY, J.