Kristina Jeffery v. Anschutz Entertainment Group, Inc., et al.

“The FAA [Federal Arbitration Act], which includes both procedural and substantive provisions, governs [arbitration] agreements involving interstate commerce.” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840.) However, “[t]he procedural aspects of the FAA do not apply in state court absent an express provision in the arbitration agreement.” (Ibid.) Where the Agreement expressly provides that it “shall be interpreted and enforced in accordance with the [FAA],” federal procedural and substantive law apply. (See Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122 [“[t]he phrase ‘pursuant to the FAA’ is broad and unconditional,” and unambiguously adopts both the procedural and substantive aspects of the FAA].)

Under the FAA, the Court must grant a motion to compel arbitration if any suit is brought upon “any issue referable to arbitration under an agreement for such arbitration” (9 U.S.C. § 3), subject to “such grounds as exist at law or in equity for the revocation of any contract...” (9 U.S.C. § 2). The moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396 [under both federal and state law, “the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate”]; Rosenthal v.

Great Western Fin’l Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal) [moving party’s burden is a preponderance of evidence].) The burden then shifts to the resisting party to prove a ground for denial. (Rosenthal, supra, 14 Cal.4th at p. 413.)

“In determining the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) But the FAA’s policy favoring arbitration ... is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.

Or in another formulation: The policy is to make arbitration agreements as enforceable as other contracts, but not more so. Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. (Morgan v. Sundance, Inc. (2022) 596 U.S. 411 (Morgan), internal citations and quotation marks omitted.)

On a motion to compel arbitration under the CAA, “[t]he party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle, supra, 55 Cal.4th at p. 236.)

B.

Discussion

As one Court of Appeal summarized,

[T]he moving party bears the burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Rosenthal, supra, 14 Cal.4th at p. 413.) 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.” (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543–544 [279 Cal. Rptr. 3d 112] (Bannister).) Alternatively, the moving party can meet its burden by setting forth the agreement’s provisions in the motion. (Condee v.

Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [105 Cal. Rptr. 2d 597] (Condee); see also Cal. Rules of Court, rule 3.1330 [“The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.”].) For this step, “it is not necessary to follow the normal procedures of document authentication.” (Condee, at p. 218.) If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.

The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. [Citations.]

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. The burden of proving the agreement by a preponderance of the evidence remains with the moving party. (Rosenthal, supra, 14 Cal.4th at p. 413.)

(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165–166 (Gamboa).)

1. Existence of an Agreement

Defendants provide the Rojc-Lun Declaration (“Rojc-Lun Decl.”), the Senior Manager for the Human Resources Department, in support of their motion. (Rojc-Lun Decl., ¶ 1.) She states that Plaintiff has been employed by Defendants since 2019 and in 2021, Defendants administered its personnel onboarding documentation process through NEW CAPS, LLC, which utilized a platform called MyCast&Crew to distribute and manage onboarding documents. (Rojc-Lun Decl., ¶¶ 6-7.) All personnel documentation administered by NEW CAPS is stored its’ online “ETC” system which allows Defendants’ Human Resources to access, view, download, and manage that personnel documentation. (Rojc-Lun Decl., ¶ 7.) Plaintiff was added to the ETC system on June 21, 2019 and on August 15, 2021, she electronically signed an arbitration agreement (the “AA”). (Rojc-Lun Decl., ¶ 13, Ex. D.)

As a general matter, an electronic signature has the same legal effect as a handwritten signature. (See Ruiz v. Moss Bro. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 843 (Ruiz).) “Still, any writing must be authenticated” before it may be received in evidence. (Ibid., internal citations omitted.) “Civil Code section 1633.9 addresses how a proponent of an electric signature may authenticate the signature-that is, show the signature is, in fact, the signature of the person the proponent claims it is.” (Ibid.) This code section provides, in pertinent part:

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).)

All that is required for Defendant to meet its initial burden as to authentication of the electronic signature is the submission of a copy of the purported agreement to arbitrate bearing Plaintiff’s electronic signature, which it has done. (See Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 [concluding that a petitioner is not required to authenticate an opposing party’s signature on an arbitration agreement as a preliminary matter or in the event the authenticity of the signature is not challenged]; Condee, supra, 88 Cal.App.4th 215.)

In such circumstances, if this initial burden is met and the opposing party then challenges the validity of that signature in his or her opposition, the burden shifts to the moving party to establish by a preponderance of the evidence that the signature is authentic. (See Ruiz, supra, 232 Cal.App.4th at p. 846 [holding that employer bears burden of proof to authenticate a signature once the employee contests the validity of the arbitration agreement].)

Plaintiff provides a declaration stating she does not recall signing the AA nor does she remember being presented with it or receiving an explanation regarding arbitration. (Plaintiff’s Opposition (“Opp.”), p. 3:21-26; Plaintiff’s Declaration (“Decl.”), ¶ 3-7.) Thus, Plaintiff has challenged the authenticity of the AA. Consequently, the burden shifts back to Defendant. (See Gamboa, supra, 72 Cal.App.5th at p. 166.)

Here, Defendants provide evidence detailing the processes used for employees to complete the onboarding system and when Defendants started using NEW CAPS, which utilized MyCast&Crew. (Rojc-Lun Decl., ¶¶ 4-9.) Plaintiff began her employment prior to the switch to the MyCast&Crew system, thus, she was re-integrated to the platform. (Rocj-Lun Decl., ¶¶ 10-12.) In doing so, Plaintiff would have to move over to the MyCast&Crew system, which required reviewing and completing her employment documents, including the AA. (Rojc-Lun Decl., ¶ 13; Ortiz Decl., ¶¶ 9-10.)

The documents could have only been completed and submitted by Plaintiff through the platform and her signature could have only been placed on the documents by someone with her unique login ID and password. (Rojc-Lun Decl., ¶ 14.) Based on the foregoing, Defendant provides admissible evidence to establish that a valid agreement exists between the parties. (See Gamboa, supra, 72 Cal.App.5th at pp. 165–166.)

2. Scope of the Agreement

The AA provides,

In consideration of my employment with the Company, its promise to arbitrate all employment- related disputes with me, and my receipt of the compensation and benefits paid to me during my employment, now or in the future, I AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, COMPLAINTS, GRIEVANCES, OR DISPUTES THAT ARISE OUT OF OR RELATE TO MY RELATIONSHIP WITH THE COMPANY SHALL BE SUBMITTED TO MANDATORY, BINDING ARBITRATION before a single, neutral arbitrator in the city and county from which I primarily rendered service to the Company.

The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. sections 1 et seq., as amended (“FAA”). I agree and acknowledge that my employment with the Company involves interstate commerce. The FAA shall apply with full force and effect to the arbitration proceedings notwithstanding the application of the state law or procedural rules set forth below. (AA, § 1.)

Covered Claims. Disputes that I agree to arbitrate, and thereby agree to waive any right to a trial by jury for, include all claims under local, state, or federal law arising out of my application for employment, any offer of employment received by me, my employment with the Company, the breach of any employment agreement, the termination of my employment with the Company, or any other aspect of my relationship with the Company, as well as claims that do not relate directly to my employment with the Company, including but not limited to, claims that I may have against the Company’s subsidiaries, affiliates, successors, assigns, officers, directors, employees, supervisors, managers, shareholders, insurers, benefit plans, representatives or agents of the company, in their capacity as such or otherwise, and claims that the Company may have against me.

The types of claims subject to this Agreement include, but are not limited to, claims for: breach of contract or covenant (express or implied), torts, wrongful termination (constructive or actual) in violation of public policy, discrimination, harassment, or retaliation, overtime, minimum wages, unpaid wages, paid and unpaid leaves, meal period and rest break violations, or any violation of a federal, state, or local law, statute, regulation, or ordinance, including Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Sarbanes-Oxley Act, the Worker Adjustment and Retraining Notification Act, the Family and Medical Leave Act, the Fair Credit Reporting Act, the Uniform Trade Secrets Act, the Fair Labor Standards Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Employee Retirement Income Security Act, the California Labor Code, the Wage Orders promulgated by the California Industrial Welfare Commission, the California Fair Employment and Housing Act, the California Family Rights Act, and all other federal, state or local employment law (AA, § 2.)

Claims not covered by the AA include, “[a] representative action brought on behalf of others under the Private Attorneys General Act of 2004, Labor Code section 2698, et seq. to the extent that such an action can only be brought by the state or its representatives, where any resulting judgment is binding on the state, and where any alleged monetary penalties largely go to state coffers.” (AA, § 3.4.)

Plaintiff argues the AA expressly excludes her PAGA claim because every PAGA action is a representative action on behalf of the state [citing Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 64, 681-682]. (Opp., p. 8:7-19.) Plaintiff directs the Court to several appellate court decisions that have addressed the impact of Viking River on similar provisions. In Ford v. The Silver F, Inc. (2025) 110 Cal.App.5th 553, 569 (Ford), the appellate court held that the exclusionary provision was intended to exclude any PAGA claim brought by plaintiff as a representative of the state and not only PAGA claims premised on code violations suffered by other employees. (Id. at p. 570.)

The provision in Ford stated, “[the parties] both agree that any [employment-related] issue between [them]...must be resolved exclusively through.... However, this Agreement does not apply to claims for workers compensation or unemployment compensation, an administrative complaint with the Equal Employment Opportunity Commission, California’s Department of Fair Employment and Housing, the National Labor Relations Board or any similar state or federal agency..., claims with respect to ERISA, and representative claims under [PAGA].” (Id. at p. 568 [emphasis added].)

The appellate court considered the provision in the context of the other categories excluded and it reasoned that the provision pertained to “employment-related claims that an employee is likely to bring against an employer” and not claims “ordinarily pursued on a class, collective, or representative basis.” (Ibid.) This is distinguishable from the instant matter as the other claims not covered by the AA include claims for sexual assault or sexual harassment; administrative claims for unpaid wages or statutory penalties before the California Division of Labor Standards; or claims that are subject to binding arbitration under a collective bargaining agreement or other agreement applicable to my employment with the Company. (See AA, §§3.1-3.6.)

Thus, the Court cannot conclude that the provision was intended to specifically apply to claims brought here.

Nevertheless, Ford also relied on the time and context under which the agreement was executed. (See Civ. Code, § 1647; Arriagarazo v. BMW of North America, LLC (2021) 64 Cal.App.5th 742, 748.) In Ford, the agreement was executed prior to Viking River and at that time, the law stated that PAGA claims could not be divided into: representative PAGA claims that could not be arbitrated and individual claims that could be arbitrated. (Id. at p. 569.) Therefore, the appellate court concluded that the only reasonable interpretation of the provision was that it was intended to exclude all PAGA claims. (Ibid.)

Similarly, here, the AA was executed on August 15, 2021, prior to Viking River. Based on the language of the provision and the context of the agreement and the law at the time it was executed, the Court cannot conclude that the parties contemplated the possibility of PAGA claims being split into an arbitrable portion and non-arbitrable portion such that Plaintiff would have considered whether she was agreeing to arbitrate her individual PAGA claims when she signed the AA.

Despite Defendants’ contention otherwise, it does not appear to this Court that Viking River or Adolph mandate a different result particularly because the Court is not aware of any authority that permits it to compel a party to arbitrate a dispute that they did not agree to resolve by arbitration. (See Mondragon v. Sunrun Inc. (2024) 101 Cal.App.5th 592, 613 [“Viking River has nothing to say about whether there was an [earlier] agreement to arbitrate [the employee's] individual PAGA claims."].) Based on the foregoing, the Court finds the exclusionary provision applies to Plaintiff’s claims.

Accordingly, Defendants’ motion to compel arbitration is DENIED.

XVI. CONCLUSION

Defendants’ motion to compel arbitration is DENIED. The Court will prepare the order.

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