Ruiz v. Moss Bros. Auto Grp., Inc.

• Decision Date: 23 December 2014
• Docket Number: E057529
• Citation: 232 Cal.App.4th 836,181 Cal.Rptr.3d 781
• Court: California Court of Appeals Court of Appeals
• Parties: Ernesto RUIZ, Plaintiff and Respondent, v. MOSS BROS. AUTO GROUP, INC., Defendant and Appellant.

232 Cal.App.4th 836

181 Cal.Rptr.3d 781

Ernesto RUIZ, Plaintiff and Respondent,

v.MOSS BROS. AUTO GROUP, INC., Defendant and Appellant.

E057529

Court of Appeal,

Fourth District, Division 2, California.

Filed December 23, 2014

See 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 15.

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed. (Super. Ct. No. CIVDS1207201)

Fine, Boggs & Perkins, John P. Boggs, Half Moon Bay, David J. Reese, and Ian G. Robertson Long Beach, for Defendant and Appellant.

R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Kitty Szeto, John M. Bickford; Lancaster, Lawyers for Justice and Edwin Aiwazian for Plaintiff and Respondent.

OPINION

KING, J.

I. INTRODUCTION

Defendant and appellant, Moss Bros. Auto Group, Inc. (Moss Bros.), appeals from an order denying its petition to compel arbitration of the employment-related and putative class action, representative, and individual claims of its service technician employee, plaintiff and respondent, Ernesto Ruiz. The trial court denied the petition on the ground Moss Bros. did not meet its burden of proving the parties had an agreement to arbitrate the controversy. (Code Civ. Proc., § 1281.2.) ¹ No statement of decision was requested or issued ( Code Civ. Proc., §§ 632, 1291), but the court implicitly found Moss Bros. did not present sufficient evidence to support a finding that an electronic signature on its proffered arbitration agreement was “the act of Ruiz” ( Civ. Code, § 1633.9; Evid. Code, § 1400). We conclude Moss Bros. did not present sufficient evidence to support a finding that Ruiz electronically signed the 2011 agreement. Accordingly, we affirm the order denying the petition.

II. FACTS AND PROCEDURAL BACKGROUND

A. The Complaint

In July 2012, Ruiz filed a putative class action complaint alleging Moss Bros. failed to pay Ruiz and other employees overtime and other wages for all hours worked, provide required meal and rest breaks, provide accurate and complete wage statements, reimburse business expenses, and pay final wages in a timely manner. The complaint also alleges representative claims for civil penalties on behalf of Ruiz, other employees, and the state, pursuant to the Labor Code Private Attorneys General Act of 2004 (the PAGA). (Lab. Code, § 2698 et seq.)

B. The Petition to Compel Arbitration

In August 2012, Moss Bros. petitioned for an order compelling arbitration of Ruiz's individual claims based on an arbitration agreement it claimed Ruiz electronically signed on or about September 21, 2011 (the 2011 agreement).² ( §§ 1281.2, 1290.) Moss Bros. asked the trial court to dismiss the purported class action and representative (PAGA) claims on the ground Ruiz waived his right to bring such collective claims by signing the 2011 agreement. The 2011 agreement provides, in part, that the arbitrator may “hear only ... individual claims” and has no authority to “consolidate[e] the claims of others into one proceeding.” ³

Moss Bros. adduced the declaration of its business manager, Mary K. Main, who was “required to be familiar with the generation and maintenance” of employee personnel records. Main summarily asserted that Ruiz “electronically signed” the 2011 agreement “on or about September 21, 2011,” and that the same agreement was presented to “all persons who seek or seek to maintain employment” with Moss Bros. or its affiliated dealerships and service/parts centers. Main did not explain how Moss Bros. verified that Ruiz, or other Moss Bros. employees, electronically signed the 2011 agreement.⁴

The 2011 agreement is just over two pages in length. “Ernesto Zamora Ruiz” appears in print on the first page, underthe title, “Employee Acknowledgment and Agreement,” and the phrases “Ernesto Zamora Ruiz (Electronic Signature)” and “9/21/2011 11:47:27 AM” appear in print on the third page, under the signature and date lines of the 2011 agreement.

C. The Opposition Papers

In opposing the petition, Ruiz argued Moss Bros. failed to meet its burden of proving the parties had a valid agreement to arbitrate the controversy (Code Civ. Proc., § 1281.2) because it did not prove that the electronic signature on the proffered 2011 agreement was an “act attributable” to Ruiz (Civ. Code, § 1633.9, subd. (a)). Ruiz argued that Main's “conclusory statement” that he electronically signed the 2011 agreement was “not enough to prove by a preponderance of the evidence” that he did, in fact, electronically sign the agreement. In his opposing declaration, Ruiz averred he did not recall signing any arbitration agreement on September 21, 2011, or at any other time, and if he had been presented with an agreement that limited his ability to sue Moss Bros. he would not have signed it.

Ruiz further indicated, however, that he may have signed an arbitration agreement when he was hired as a service technician for Moss Bros. in March 2010, but he was uncertain. On March 12, his first day of work, he met with his supervisor, Mike Dawe, to process his “new-hire paperwork,” and during this meeting he was given a “big stack of forms” and was told he had to sign them. He was given a brief description of each form but not an opportunity to “read each and every form.” He then met with Kimberly Pacheco who had him “electronically sign a few [additional] forms,” but he did not recall signing any arbitration agreement when he was hired in 2010, and he did not receive copies of any of the forms he was required to sign.⁵

D. The Reply Papers

In her reply declaration, Main explained that the Employee Acknowledgement form, including the 2011 agreement Ruiz electronically signed on September 21, 2011, was “presented” to all Moss Bros. employees “as part of a series of changes to the [Company's] Employee Handbook.” Main further explained: “Each employee is required to log into the Company's HR system—each with his or her unique login ID and password—to review and electronically execute the Employee Acknowledgement form, which includes the arbitration agreement. While all employees are required to sign the form, they are free to review it at their leisure while logged into the HR system.” Still, Main did not indicate whether or if so how Moss Bros. ascertained that Ruiz electronically signed, or was the person who electronically signed, the Employee Acknowledgement form, including the 2011 agreement.

Attached to Main's reply declaration were two other arbitration agreements Main claimed Ruiz signed in 2010. Main claimed Ruiz electronically signed one arbitration agreement on March 4, 2010, as part of his online employment application, and signed a second arbitration agreement by hand when he was hired on March 12, 2010.⁶ Neither the March 4 or 12, 2010, arbitration agreements are mentioned in the petition, however. The petition sought to compel arbitration based solely on the 2011 agreement which, unlike the 2010 arbitration agreements, included putative class action and PAGA claim waivers.

E. The Trial Court's Ruling

Following an October 3, 2012, hearing on the petition, the trial court took the matter under submission. In an October 18 minute order, the court denied the petition on the ground Moss Bros. “failed to establish that an Arbitration Agreement in fact exists between Moss Bros. and Ruiz.” No statement of decision was requested, and none was issued. (§§ 632, 1291.) Moss Bros. appealed. (§ 1294, subd. (a).)

III. ANALYSIS

A. The Petition Was Properly Denied

“Section 1281.2 requires a court to order arbitration ‘if it determines that an agreement to arbitrate ... exists....' (§ 1281.2.)” ( Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153, 128 Cal.Rptr.3d 330.) Sections 1281.2 and 1290.2 create a summary proceeding for resolving petitions to compel arbitration. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972, 64 Cal.Rptr.2d 843, 938 P.2d 903; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217 (Pinnacle Museum ).) The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination. (Engalla v. Permanente Medical Group, Inc., supra, at p. 972, 64 Cal.Rptr.2d 843, 938 P.2d 903.)

Moss Bros. did not request and the court did not issue a statement of decision explaining the factual and legal basis of its order denying the petition. (§§ 632, 1291.) Because a statement of decision was available but not requested, we apply the doctrine of implied findings and presume the court made all factual findings necessary to support its order—to the extent substantial evidence supports such findings. (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970, 153 Cal.Rptr.3d 135.)

In finding Moss Bros. “failed to establish that an Arbitration Agreement in fact exists between Moss Bros. and Ruiz” (Code Civ. Proc., § 1281.2), the court implicitly found Moss Bros. did not prove by a preponderance of the evidence that Ruiz was the person who electronically signed the 2011 agreement (Civ. Code, § 1633.9, subd. (a)). Substantial evidence supports this finding. Indeed, based on our de novo review of the undisputed evidence in the record on appeal, we independently conclude Moss Bros. did not present sufficient evidence to support a finding that the electronic signature on the 2011 agreement was the act of Ruiz. (Evid. Code, § 1400, cl. (a); Civ. Code, §...