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Court of Appeal:
No Need for Arbitration Where Plaintiff Denied Recollection of Signing Agreement to Arbitrate
Opinion Says Declaration That ‘I Do Not Remember’ Shifted Burden to Defendant to Prove Assent
By a MetNews Staff Writer
An ex-employee’s declaration that she did not recall signing an agreement, purportedly executed by her when she was hired, to arbitrate any disputes that might develop with her employer was enough to overcome a motion by that employer to compel arbitration of her lawsuit against it for wrongful labor practices, the Court of Appeal for this district has held.
Once the plaintiff, Hope Gamboa, disclaimed any recollection of the document which purportedly bore her signature, produced by the employer, Northeast Community Clinic, the burden was on the defendant “to prove the existence of an arbitration agreement by a preponderance of the evidence,” Div. Seven said in an opinion filed Tuesday. The employer’s failure to rebut the declaration, it declared, compels an affirmance of an order by Los Angeles Superior Court Judge Maureen Duffy-Lewis denying the clinic’s motion on the ground that the defendant did not “meet its burden to show a contract was formed” to arbitrate disputes.
Santa Clara Superior Court Judge Audra Ibarra, sitting on assignment, authored the opinion, in which Presiding Justice Dennis M. Perluss and Justice Gail Ruderman Feuer joined.
Two-Step Process
Ibarra recited that there is a two-step process involved: the proponent of an order compelling arbitration must show an agreement to arbitrate—a burden which she said the clinic “may have met” by attaching to a declaration a copy of the agreement—and, if an agreement is shown, the opponent must provide evidence contravening that showing. Gamboa put forth such evidence, Ibarra said, by declaring under penalty of perjury:
“I do not remember these [pre-employment] documents at all....Had I been made aware of the existence of an arbitration agreement, and been explained its provisions, I would not have signed any such documents.”
The visiting jurist set forth that it was not necessary for Gamboa to have disavowed the authenticity of her signature on the arbitration agreement, saying:
“It was enough that she challenged the authenticity of the agreement by saying under penalty of perjury that she did not remember it.”
Burden on Employer
Ibarra wrote:
“[O]nce Gamboa produced evidence challenging the authenticity of the purported arbitration agreement, the Clinic was required to rebut the challenge by establishing by a preponderance of the evidence that the agreement was valid. The Clinic did not have to authenticate Gamboa’s signature on the arbitration agreement. The Clinic could have met its burden in other ways, including a declaration from the Clinic’s custodian of records. But proferring no admissible evidence was insufficient.”
The clinic’s director of human resources, Marina Lopez, did execute a declaration—the declaration to which a copy of the agreement was appended—but Duffy-Lewis excluded it based on the lack of foundational facts. Ibarra said the judge did not abuse her discretion in disallowing the evidence.
‘Boilerplate Sentence’ Inadequate
“Lopez’s boilerplate sentence, ‘If called as a witness I could and would competently testify under oath to the above facts which are personally known to me,’ is not sufficient to establish personal knowledge,” the acting justice noted. She declared:
“Even if the court had admitted Lopez’s declaration and the arbitration agreement into evidence, those documents would not have compelled a finding in the Clinic’s favor as a matter of law as required for a reversal…. In her declaration, Lopez… did not explain how she knew Gamboa had seen, much less signed, the arbitration agreement.”
The case is Gamboa v. Northeast Community Clinic, 2021 S.O.S. 6372.
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