Metropolitan News-Enterprise


Monday, January 23, 2023


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First District Shuns 2021 Opinion on Skirting Arbitrations

Rationality of Opinion by Div. Seven of This District’s Court of Appeal Called Into Question


By a MetNews Staff Writer


Div. Four of the First District Court of Appeal has repudiated a decision of this district’s Div. Seven affirming an order that denied a motion to compel arbitration on the ground that the plaintiff, in an employment case, said in a declaration that she did not remember signing an agreement containing an arbitration clause.

Santa Clara Superior Court Judge Audra Ibarra, sitting on assignment, authored Div. Seven’s Nov. 30, 2021 opinion in Gamboa v. Northeast Community Clinic upholding an order by Los Angeles Superior Court Judge Maureen Duffy-Lewis. Joining in that opinion were Presiding Justice Dennis M. Perluss and Justice Gail Ruderman Feuer.

Ibarra said that the employer, a healthcare clinic, “may have met its burden” of showing prima facie evidence that an agreement existed by attaching a signed copy of it, but that the employee, Hope Gamboa, “likewise met her burden on the second step”—demonstrating a factual dispute as to such existence—“by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it.”

The employee had declared:

“I do not remember these 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.”

Ibarra said that the employer “claims, without citation to authority” that a Court of Appeal case from the Fourth District’s Div. Two, crediting the disavowal by an employee of his supposed electronic signature on an agreement “is distinguishable” because the present case “involves a handwritten signature.” That, she wrote, “is a distinction without a legal difference.”

Pollak’s Opinion

Stuart R. Pollak, who has retired as presiding justice of the First District’s Div. Four and is serving on assignment, wrote that “[w]ith all respect, we disagree” with Ibarra’s opinion, explaining:

“While handwritten and electronic signatures once authenticated have the same legal effect, there is a considerable difference between the evidence needed to authenticate the two. Authenticating an electronic signature if challenged can be quite daunting….If a party confronted with his or her handwritten signature on an arbitration agreement is unable to allege that the signature is inauthentic or forged, the fact that that person does not recall signing the agreement neither creates a factual dispute as to the signature’s authenticity nor affords an independent basis to find that a contract was not formed.”

In a footnote, Pollak quoted Ibarra as saying:

 “[W]e need not decide whether Gamboa challenged the authenticity of her purported signature on the arbitration agreement. It was enough that she challenged the authenticity of the agreement by saying under penalty of perjury that she did not remember it.”

Pollak remarked:

“We question how the ‘authenticity of the agreement’ can be challenged without challenging the authenticity of the plaintiff’s signature on that agreement.”

Div. Seven has, in recent years, rendered various opinions featuring its own drummer’s innovative tunes to which other panels have indicated a disinclination to march to.

No Excuse

Pollak noted that three former employees of Wise Auto Group in Marin County who are suing over being fired admitted that they did not read the agreement containing an arbitration clause, explaining that they were confronted with a “stack of documents.” The jurist wrote:

“It is hornbook law that failing to read an agreement before signing it does not prevent formation of a contract….That settled rule cannot be evaded by adding, ‘...and if I had read the contract, I wouldn’t’ve signed it.’ Plaintiffs’ allegation as to why they did not read the contract before signing it—i.e., that they were pressured to sign it quickly and not given time to read it—is material only to whether enforcement of the agreement is barred by the defense of unconscionability.”

Pollak proceeded to declare that “there is no basis to conclude that the arbitration agreement suffers from substantive unconscionability, and the court erred in refusing to compel arbitration on this alternative ground.”

The case is Iyere v. Wise Auto Group, 2023 S.O.S. 245.


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