California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of San Bernardino County, No. CIVDS1207201 John M. Pacheco, Judge.
Fine, Boggs & Perkins, John P. Boggs, David J. Reese, and Ian G. Robertson for Defendant and Appellant.
R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Kitty Szeto, John M. Bickford; Lawyers for Justice and Edwin Aiwazian for Plaintiff and Respondent.
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.) 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).
(§§ 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.”
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.
The 2011 agreement is just over two pages in length. “Ernesto Zamora Ruiz” appears in print on the first page, under the title, “Employee Acknowledgment and Agreement, ” and the phrases “Ernesto Zamora Ruiz (Electronic Signature)” and “9/21/201111:47:27 AM” appear in ...