Filed 10/22/18 Duenas v. Adecco USA, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed.

Bryan Cave, Julie E. Patterson, Julie W. O’Dell and Traci G. Choi for Defendant and Appellant.

The Myers Law Group, David Patrick Myers and Ann Hendrix for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and appellant, Adecco USA, Inc. (Adecco), appeals from the trial court’s order denying Adecco’s motion to compel arbitration of a wrongful termination lawsuit brought by plaintiff and respondent, Jessica Duenas. Adecco contends the trial court erred in requiring proof of electronic security measures to authenticate Duenas’s electronic signature (e-signature) on a Dispute Resolution and Arbitration Agreement for Consultants/Associates (Arbitration Agreement). Adecco also contends the trial court erred in requiring proof of authentication of Adecco’s countersignature on the Arbitration Agreement. We reject Adecco’s contentions and conclude the trial court reasonably found that Adecco failed to meet its burden of proving Duenas electronically signed (e-signed) the Arbitration Agreement. We therefore affirm the trial court’s order denying Adecco’s motion to compel arbitration.

II.

FACTS AND PROCEDURAL BACKGROUND

Adecco is a staffing agency that recruits temporary employees, known as associates, and assigns them to work for Adecco’s clients. Duenas worked as an associate for Adecco from May through October 2015.

On May 18, 2015, Duenas went to an Adecco branch office to begin her employment. She met with recruiter Shenoah McDonald, who assisted Duenas in completing the “onboarding process”^[1] for new Adecco employees. In September 2015, Adecco assigned Duenas to work for Moran Foods, LLC (Moran). She worked there as a temporary warehouse clerk from September 2015 to October 2015.^[2]

In June 2016, Duenas filed a complaint against Adecco, Moran, and Ramon Vidrio alleging (1) sexual harassment, (2) retaliation, (3) failure to prevent harassment and retaliation, (4) wrongful termination in violation of public policy, and (5) violation of employment without discrimination and request for declaratory relief.

In August 2016, Adecco demanded Duenas’s claims be arbitrated under the Arbitration Agreement Duenas purportedly entered into with Adecco. Duenas refused to arbitrate.

1. Adecco’s Motion to Compel Arbitration

In December 2016, Adecco filed a motion to compel arbitration^[3] supported by declarations by Adecco’s recruiter, McDonald, and Adecco’s manager of corporate operations, Katherine McGuire Russell. Attached to the motion were printout copies of (1) Duenas’s e-signed electronic signature agreement dated May 18, 2015; (2) the Arbitration Agreement e-signed on May 18, 2015, by Duenas and countersigned by an Adecco representative; and (3) Duenas’s acknowledgement of company form e-signed by Duenas on May 18, 2015.

1. McDonald’s Declaration

McDonald stated in her declaration the following: She was responsible for assisting new employees with Adecco’s employment onboarding process. On May 18, 2015, Duenas came to Adecco’s Rancho Cucamonga branch office. At that time, McDonald was a support specialist and assisted Duenas with the onboarding process. McDonald set up Duenas at one of the office computers and logged her onto Adecco’s account at www.AdeccoUSA.com. After Duenas submitted an employment application at the www.AdeccoUSA.com Web site, Duenas logged on to US Verify, which enabled her to execute and process her onboarding documents. Duenas logged in with her personal information, which included her name, last four digits of her social security number, zip code, and a verification code. Duenas reviewed and e-signed each form, including the Arbitration Agreement. McDonald did not sit next to Duenas while Duenas completed the forms in her US Verify file, but was in the area of the computers. After Duenas completed the onboarding process, McDonald received notification of completion of the forms. McDonald then “would have obtained Ms. Duenas’ identifications [(her driver’s license and social security card)] to complete the Employment Eligibility Verification Form.”

2. Russell’s Declaration

Russell stated in her declaration that she was responsible for the overall processes and implementation of policies involving documentation related to the hiring of Adecco associates. Adecco maintains a proprietary database, Custom Match (CM). CM houses Adecco’s associates’ personnel information. Each record entry in an associate’s CM file occurs at or about the time of the event by someone with personal knowledge of the event. Adecco uses the Web based application, US Verify, for all associates when hired. The associates’ documents and records in US Verify are true and correct copies of documents created or acknowledged by associates or others with personal knowledge of the records or events stated in the documents. Russell can and regularly does access associates’ onboarding documents stored on US Verify.

Russell reviewed Duenas’s CM file and all of her onboarding documents processed by Duenas in her US Verify file. They show that during October 2015, Duenas worked as a temporary employee at Moran, which is an Adecco client. Adecco associates seeking placement through Adecco must first register on www.AdeccoUSA.com, create a username and password, and complete an application for consideration for a position. If the associate qualifies for a position, an Adecco recruiter typically interviews the associate by telephone. If the associate is selected for the position, the recruiter notifies the associate that he or she must complete new hire documents on the US Verify Web site.

Adecco used US Verify as an employee onboarding tool for associates seeking temporary positions with Adecco clients. It is a single repository for Adecco associates to complete necessary new hire documents and onboarding documents specific to an assignment. US Verify provides new hire onboarding forms electronically to associates. US Verify allows employees to view and complete federal W-4 forms, state tax forms, and Adecco personnel forms, including payroll choice forms, mandatory contact notice forms, background authorization and releases, reference check releases, notices of health care benefit options, state forms, and the employee handbook. US Verify allows Adecco to bundle client specific forms for a particular position.

The onboarding process begins with an Adecco recruiter or support specialist creating a new record for the associate in US Verify. The recruiter uses the associate’s personal information. Then the recruiter provides the associate with access to a US Verify link on an Adecco computer by typing in the employer code. The associate then types in his or her name, the last four digits of his or her social security number, the associate’s zip code, and a code which appears on the screen to confirm that a live person is completing the forms.

Russell concluded, based on information available on US Verify, that McDonald created a record for Duenas in US Verify on May 18, 2015. This enabled Duenas to access US Verify and complete her onboarding documents. Duenas accessed the US Verify link, e-signed her electronic signature agreement, and completed and e-signed her onboarding documents. That same day, McDonald reviewed Duenas’s driver’s license and social security card, and signed the employer certification section of Duenas’s I-9 form, confirming Duenas’s identity and that she is authorized to work in the United States.

Russell explained that when accessing US Verify, an associate is shown a list of documents that must be completed in sequential order. The first document is the electronic signature agreement. It must be completed before the associate can proceed with completing the other documents. After the associate acknowledges agreement with the electronic signature agreement terms, the associate is directed to the Arbitration Agreement. The Arbitration Agreement states that, “‘BY SIGNING THIS AGREEMENT, THE PARTIES HEREBY WAIVE THEIR RIGHT TO HAVE ANY DISPUTE, CLAIM OR CONTROVERSY DECIDED BY A JUDGE OR JURY IN A COURT.’” Associates must electronically sign the Arbitration Agreement before proceeding with the next document in US Verify. According to Russell, Duenas e-signed the Arbitration Agreement by clicking the “‘Yes’” response in confirming her e-signature before proceeding with the next onboarding document. An Adecco representative then countersigned the Arbitration Agreement.

Russell further stated the last form an associate was required to complete as part of the onboarding process in US Verify was the acknowledgment of company form. That form lists onboarding documents on US Verify, and requires the associate to acknowledge receipt, review, and acceptance of the terms of the onboarding forms. The acknowledgment of company form must be e-signed before the onboarding process can be completed.

B. Duenas’s Opposition and Declaration

Duenas filed opposition and a supporting declaration. Duenas stated in her declaration that she recalled visiting an Adecco office in 2015. She was asked to provide basic information on a computer, which included her name, address, prior work history, and last four digits of her social security number. Duenas reviewed the documents attached to Russell’s declaration, which included (1) an electronic signature agreement, (2) Arbitration Agreement, and (3) acknowledgement of company form. Duenas denied having seen those documents before and denied signing them at the Adecco office. She did not complete forms that a new hire would normally complete. When Adecco assigned her to work at Moran in October 2015, her identification was requested. She provided it at that time. She was also shown a document, but she did not recall its contents.

C. Adecco’s Reply

On January 3, 2017, Adecco filed a reply to Duenas’s opposition, along with supplemental declarations by McDonald and Russell.

1. McDonald’s Supplemental Declaration

McDonald stated in her supplemental declaration that if an applicant is selected for an associate position at Adecco, the applicant can elect to complete the US Verify process at an Adecco branch office. McDonald would create a US Verify record for the applicant who would then use a computer in the office to access the applicant’s US Verify link. While an applicant is reviewing and electronically signing US Verify documents, McDonald is unable to access the applicant’s file. McDonald cannot access or electronically countersign any documents until the applicant has completed the process. When US Verify indicates the applicant has completed the process, McDonald reviews the applicant’s US Verify documents and countersigns them on behalf of Adecco where appropriate.

McDonald explained that when an applicant reviews and signs an I-9 form at an Adecco branch office, the applicant electronically inputs all of his or her personal information in the federal I-9 form section entitled “‘Section 1. Employee Information and Attestation.’” Such information includes the applicant’s name, address, social security number, and e-mail address. The applicant then electronically signs the I-9 form and McDonald reviews the identification provided by the applicant, such as a driver’s license, and inputs the identification information in the I-9 form section entitled “‘Section 2. Employer or Authorized Representative Review and Verification.’” McDonald then electronically signs the employer certification section of the I-9 form. McDonald cannot complete and electronically sign section 2 until the applicant has completed section 1 and e-signed the I-9 form. McDonald denied ever accessing an applicant’s US Verify link and electronically signing any documents in the applicant’s name, nor had she ever witnessed anyone else at Adecco do so.

2. Russell’s Supplemental Declaration

Russell stated in her supplemental declaration that she regularly accessed associates’ onboarding documents stored on US Verify. US Verify records the date and time an Adecco applicant or employee electronically signs a document. Russell attached to her supplemental declaration Duenas’s entire US Verify file (exhibit D). The attached documents state they were e-signed by Duenas on May 18, 2015. Where countersigned, the documents state McDonald e-signed the documents on May 18, 2015, with the exception of the Arbitration Agreement. The countersignature on Duenas’s Arbitration Agreement is a handwritten signature by someone with a first name beginning with the letter J and last name beginning with the letter R. The lower case letters of the name are mostly illegible.

Based on a review of Duenas’s US Verify file, Russell concluded Duenas’s electronic signature agreement was e-signed on May 18, 2015, at 1:40:46 p.m. Central Standard Time (CST). Duenas’s e-signature was then applied in sequential order to the other US Verify documents, with the last document, the Adecco acknowledgment of company form, e-signed at 2:06:09 p.m. CST. The Arbitration Agreement was e-signed at 1:52:45 p.m. CST. From 2:20:24 p.m. to 2:21:06 p.m. CST, McDonald countersigned on behalf of Adecco the documents requiring countersignatures.

Russell noted that, in completing and signing these forms, Duenas would have been required to input her personal information in (1) her state withholding allowance certificate, (2) her federal W-4 form, and (3) the easy pay authorization (direct deposit) form. She was also required to input her personal information in her I-9 form. US Verify showed Duenas’s e-signature was applied to her I-9 form at 1:40:33 p.m. CST on May 18, 2015. McDonald was required to review Duenas’s documents establishing proof of identity and authorization to work in the United States before McDonald e-signed the employer certification section of Duenas’s I-9 form at 2:22:46 p.m. on May 18, 2015. An associate may opt out of signing an Arbitration Agreement by electronically signing the opt out form available by e-mail. An executed opt out form is kept in the associate’s US Verify file.

D. Sur-replies to Motion to Compel Arbitration

On January 9, 2017, the trial continued the hearing on Adecco’s motion to compel arbitration to allow Duenas to file a sur-reply in response to Adecco’s new evidence presented in Adecco’s reply. The court also permitted Adecco to file a sur-sur-reply.

1. Duenas’s Sur-reply Supplemental Declaration

Duenas’s supplemental declaration filed in support of her sur-reply states the following: Duenas’s friend, Nancy, who visited the Adecco branch office with Duenas in 2015, refreshed Duenas’s memory. Duenas recalled that, in addition to providing basic information on the computer at the Adecco branch office, Duenas and Nancy provided their identification and social security cards, which someone made copies of. Duenas did not recall the name of that person, but McDonald’s name did not sound familiar. Duenas did not see her personnel file before filing the instant lawsuit. Duenas denied she completed and signed the documents attached to Russell’s supplemental declaration (exhibit D). Duenas noted various information provided in the documents that indicated someone other than Duenas filled out the documents.

2. Russell’s Second Supplemental Declaration

Russell’s second supplemental declaration filed in support of Adecco’s sur-sur-reply, states US Verify records the date and time that an applicant electronically signs a document. US Verify also records the date and time that an Adecco colleague countersigns a document. Russell explained that “[t]he first thing an applicant must do to complete the US Verify process is input the information required in Section 1 (Employee Information) of the I-9 Forms through the US Verify system. US Verify does not require the applicant to sign an Electronic Signature Agreement before applicants electronically sign their I-9 Forms.” After completing section 1 of the I-9 form, the applicant signs the electronic signature agreement, which is for completing Adecco’s own onboarding documents, including the Arbitration Agreement. The electronic signature agreement must be executed before the applicant can sign any of Adecco’s other onboarding documents.

Russell further states in her second supplemental declaration that she reviewed Duenas’s onboarding documents and underlying data showing when Duenas’s documents were e-signed. Duenas e-signed her electronic signature agreement at 1:40:46 p.m. CST, approximately 12 minutes before electronically signing the Arbitration Agreement at 1:52:45 p.m. CST. Russell further concludes the only information Duenas supplied before signing the electronic signature agreement was the information required in section 1 of the I-9 form.

Duenas objected to the additional evidence (McDonald’s and Russell’s supplemental declarations and Russell’s second supplemental declaration) filed with Adecco’s reply and sur-sur-reply. Duenas requested that the court allow her to respond to the new evidence by submitting a sur-sur-sur-reply if the court did not sustain her objection.

3. Sealed Payroll Records

Adecco objected to Duenas filing a sur-sur-sur-reply. Adecco also filed an ex parte request to file under seal the following items: (1) Duenas’s employee easy pay selection record; and (2) the declaration of Adecco’s payroll specialist, Loretta Dunn, with four attached payroll records. Dunn states in her declaration that Adecco uses Oracle PeopleSoft computer software to maintain Adecco’s payroll, including paycheck information. Dunn further states that Adecco’s Oracle PeopleSoft payroll records were created at or near the time the paychecks were issued to Adecco employees.

The trial court granted Duenas’s request to file a sur-sur-sur-reply. The court also permitted Adecco to file a response (a sur-sur-sur-sur-reply) but without any additional evidence. The court continued the motion to compel arbitration. In addition, the court granted Adecco’s ex parte request to file the additional payroll evidence under seal.

E. Hearing on Motion to Compel Arbitration

On February 17, 2017, the court heard Adecco’s motion to compel arbitration. The court orally provided a detailed tentative decision in which the court stated it intended to deny Adecco’s motion to compel arbitration. After hearing oral argument, the court took the matter under submission. One week later, the court issued its ruling denying Adecco’s motion to compel arbitration. The court stated the motion was denied, “as defendant’s[sic] have not met their evidentiary burden of proving by a preponderance of evidence that the electronic signature on the dispute resolution agreement is authentic in light of the plaintiff’s failure to recall signing it.”

III.

STATUTORY SCHEME AND STANDARD OF REVIEW

“Title 9 of the Code of Civil Procedure . . . represents a comprehensive statutory scheme regulating private arbitration in this state. (§ 1280 et seq.)” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9; accord, Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1467 (Peng).) “The fundamental premise of the scheme is that ‘[a] written agreement to submit [either a present or a future controversy] to arbitration . . . is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.’ ([§] 1281.)” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 830, fn. omitted; accord, Peng, supra, at p. 1467.)

“‘[T]he Legislature has expressed a “strong public policy in favor of arbitration . . . .” . . .’ Nevertheless, the public policy is not absolute. ‘“[T]he policy favoring arbitration cannot displace the necessity for a voluntary agreement to arbitrate.” [Citations.]’” (Peng, supra, 219 Cal.App.4th at p. 1468.)

Code of Civil Procedures section 1281.2 provides for court enforcement of private arbitration agreements: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] . . . [¶] . . . Grounds exist for the revocation of the agreement.” (§ 1281.2, subd. (b).)

Under Code of Civil Procedure section 1281.2, “when a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement . . . that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413; accord, Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057 (Espejo).)

Defendants “may meet their initial burden to show an agreement to arbitrate by attaching [to the motion to compel arbitration] a copy of the arbitration agreement purportedly bearing the opposing party’s [electronic] signature.” (Espejo, supra, 246 Cal.App.4th at p. 1060.) Once the opposing party has challenged the validity of that signature in the opposition, the defendants are then required to establish by a preponderance of the evidence that the signature is authentic. (Ibid.)

When ruling on a motion to compel arbitration “the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; accord, Espejo, supra, 246 Cal.App.4th at pp. 1057-1058.) We apply the substantial evidence standard of review where the trial court resolved disputed facts in ruling on a motion to compel arbitration. (Peng, supra, 219 Cal.App.4th at p. 1468.)

In the instant case, Adecco was the moving party bringing the motion to compel arbitration. Therefore, Adecco had the initial burden of proving the existence of an Arbitration Agreement. After Duenas denied signing the Arbitration Agreement, Adecco had the burden of authenticating her e-signature by a preponderance of the evidence. The trial court then was required to make a factual determination as to the authenticity of Duenas’s e-signature. Because there was conflicting evidence presented on the issue of whether Duenas e-signed the Arbitration Agreement, we apply the substantial evidence standard of review. (Espejo, supra, 246 Cal.App.4th at p. 1056; Peng, supra, 219 Cal.App.4th at pp. 1467-1468.)

We note there was no statement of decision requested or issued. (Code Civ. Proc., §§ 632, 1291.) “No statement of decision is required if the parties fail to request one.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) Although the trial court provided an oral tentative decision at the hearing on February 17, 2017, the record does not disclose whether the trial court adopted the tentative decision as the basis for its ruling issued one week later. Therefore, this court cannot rely on the tentative decision as stating the basis for the trial court’s ruling. Because no statement of decision was requested, this court must apply “the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.’ [Citation.]” (Id. at p. 970.)

IV.

E-SIGNATURE AUTHENTICATION

Adecco contends the trial court erred in finding that Adecco failed to meet its burden of proving Duenas entered into an enforceable Arbitration Agreement. This issue turns on whether there was sufficient evidence authenticating Duenas’s e-signature on the Arbitration Agreement.

A. Authentication of an Electronic Signature

General principles of contract law apply when determining whether the parties have entered a binding agreement to arbitrate, and the party seeking arbitration bears the burden of proving the existence of an arbitration agreement. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 (Ruiz), quoting Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) Here, Adecco sought to compel arbitration based on the written Arbitration Agreement, which Adecco claimed Duenas e-signed. “Under Civil Code section 1633.7, enacted in 1999 as part of the Uniform Electronic Transactions Act (Civ. Code, § 1633.1 et seq., added by Stats. 1999, ch. 428, § 1, pp. 2809-2816), an electronic signature has the same legal effect as a handwritten signature (Civ. Code, § 1633.7, subd. (a) [‘A . . . signature may not be denied legal effect or enforceability solely because it is in electronic form.’]).”^[4] (Ruiz, supra, at p. 843.)

Any writing, including an electronically signed agreement, must be authenticated before the writing, or secondary evidence of its content, may be introduced into evidence. (Evid. Code, § 1401; Ruiz, supra, 232 Cal.App.4th at p. 843.) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.)

Civil Code section 1633.9^[5] addresses authentication of an electronic signature. Such authentication establishes that the electronic signature is, in fact, the signature of the person the proponent claims it is. (Ruiz, supra, 232 Cal.App.4th at p. 843; Evid. Code, § 1400.) Civil Code section 1633.9, subdivision (a) states: “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 [effectiveness or value] of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” Under Civil Code section 1633.9, Adecco thus could establish the act of Duenas electronically signing the Arbitration Agreement by “any manner” (Civ. Code, § 1633.9, subd. (a)), including showing the existence of an effective electronic security procedure establishing who actually was responsible for electronically signing the Arbitration Agreement.

Section 1633.9 does not require evidence of an effective security procedure but merely states such evidence is relevant to authenticating an electronic signature. This is, no doubt, because such evidence may ensure that the person named in the electronic signature is the person responsible for electronically signing the document, as opposed to someone misusing the identity of the person named in the electronic signature.

B. Substantial Evidence Challenging Authenticity

The record as a whole supports the trial court’s finding that Adecco failed to authenticate Duenas’s e-signature on the Arbitration Agreement. First, Adecco provided inconsistent evidence of procedures used by new Adecco employees to review and sign onboarding documents on US Verify. Second, Adecco failed to provide security procedure evidence demonstrating that no one other than Duenas could have e-signed the Arbitration Agreement. Third, Duenas denied in her initial declaration that she did not review, complete, or sign the onboarding documents attached as exhibits to Russell’s declaration, including the electronic signature agreement and Arbitration Agreement. Fourth, Duenas claimed some of the onboarding documents were filled out in ways that were contrary to how she would have normally completed the documents. Fifth, the Adecco countersignature on the Arbitration Agreement is suspect because it is a handwritten signature by someone other than McDonald.

1. Inconsistent Declarations

Adecco’s supporting declarations contained inconsistent statements regarding Adecco’s onboarding procedures. Adecco provided three supporting declarations by Russell and two declarations by McDonald. Russell’s first declaration stated that upon accessing US Verify, an Adecco applicant must complete a list of documents in sequential order, beginning with the electronic signature agreement. The applicant could not access any other documents until this was done.

Contrary to these statements, Russell stated in her second declaration that Duenas’s e-signature was applied to the electronic signature agreement at 1:40:46 p.m. CST, after Duenas e-signed her I-9 form at 1:40:33 p.m. CST. When Duenas pointed out this contradiction, Adecco filed a third contradictory declaration by Russell stating that when completing the US Verify process an Adecco applicant must first input employee information in section 1 of the I-9 form, before completing the electronic signature agreement and other documents. Russell stated that US Verify does not require the applicant to sign an electronic signature agreement before electronically signing the I-9 form. This procedure suggests that the applicant’s e-signature on section 1 of the I-9 form using US Verify would have no effect because the I-9 form would have been e-signed before executing the electronic signature agreement.

Without providing any supporting evidence, Adecco argues in its sur-sur-sur-sur-reply that an applicant cannot access the I-9 form. The applicant can only input the information requested in section 1 into the computer fields on US Verify and must do so before accessing the other onboarding documents. But this contradicts Russell’s initial declaration testimony. Also, section 1 of Duenas’s I-9 form not only contains Duenas’s personal information, but also includes an e-signature. We note the e-signature on the I-9 form (“JESSICA DUENAS”) differs from the e-signature used on the other onboarding documents (“JESSICA A DUENAS”).

2. Lack of Electronic Security Procedure Evidence

It is unclear from the trial court’s minute order denying the motion to compel arbitration whether the trial court relied on the lack of electronic security procedure evidence when denying the motion to compel arbitration. The court suggested in its tentative ruling that the lack of evidence of electronic security procedures was a significant factor, among others, weighing in support of finding that Adecco had not met its burden of proof of authenticating Duenas’s e-signature. However, the court did not state, as Adecco suggests, that electronic security procedure evidence was required or that in its absence the court was required to deny the motion. The trial court merely stated in its ruling: “Motion to compel arbitration is denied as defendant’s [sic] have not met their evidentiary burden of proving by a preponderance of evidence that the electronic signature on the dispute resolution agreement is authentic in light of the plaintiff’s failure to recall signing it.”

Even assuming the trial court denied the motion to compel arbitration based on the lack of electronic security procedure evidence, relying on such a factor was not improper under section 1633.9. As Adecco argues, under section 1633.9, Adecco could establish the act of Duenas electronically signing the Arbitration Agreement by “any manner,” which includes relying on evidence of a lack of electronic security measures showing that an e-signature has been invoked by the person named in the e-signature.

In Ruiz, supra, 232 Cal.App.4th at page 838 this court affirmed the trial court’s ruling denying the employer’s motion to compel arbitration on the ground the employer did not meet its burden of authenticating the purported employee electronic signature on the arbitration agreement. In opposing the motion, the employee asserted that he did not recall signing the agreement. We concluded in Ruiz that there was insufficient evidence of authentication because the employer’s business manager did not explain in her declaration how, or upon what basis, she inferred that the electronic signature on the arbitration agreement was the act of Ruiz. (Id. at p. 844.)

In Ruiz, we reasoned that the business manager failed to demonstrate that an electronic signature in Ruiz’s name could only have been placed on the agreement “by a person using Ruiz’s ‘unique login ID and password’; that the date and time printed next to the electronic signature indicated the date and time the electronic signature was made; that all Moss Bros. employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements; and the electronic signature on the 2011 agreement was, therefore, apparently made by Ruiz on September 21, 2011, at 11:47 a.m. Rather than offer this or any other explanation of how she inferred the electronic signature on the 2011 agreement was the act of Ruiz, [the business manager] only offered her unsupported assertion that Ruiz was the person who electronically signed the 2011 agreement. In the face of Ruiz’s failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ Ruiz. (Civ. Code, § 1633.9, subd. (a).)” (Ruiz, supra, 232 Cal.App.4th at p. 844.) Likewise, in the instant case, Adecco’s supporting declarations do not demonstrate there were electronic security procedures in place that ensured that the e-signature in Duenas’s name was the result of an act of Duenas and not some other person.

Unlike in Ruiz, supra, 232 Cal.App.4th 836, the court in Espejo, supra, 246 Cal.App.4th at pages 1050 through 1051, reversed the trial court’s ruling denying the employer’s petition to compel arbitration. The court in Espejo rejected the trial court’s finding that the defendants failed to establish there was an enforceable arbitration agreement. (Ibid.) Espejo explained that a supplemental declaration by the employer’s systems consultant “offered the critical factual connection that the declarations in Ruiz lacked. [The systems consultant] detailed [the employer’s] security precautions regarding transmission and use of an applicant’s unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement and the DRP [arbitration agreement]. Based on this procedure, she concluded that the ‘name Jay Baniaga Espejo could have only been placed on the signature pages of the employment agreement and the DRP by someone using Dr. Espejo’s unique user name and password. . . . [¶] Given this process for signing documents and protecting the privacy of the information with unique and private user names and passwords, the electronic signature was made by Dr. Espejo’ on the employment agreement and the DRP at the date, time, and IP address listed on the documents. These details satisfactorily meet the requirements articulated in Ruiz and establish that the electronic signature on the DRP was ‘the act of’ Espejo (Civ.Code, § 1633.9, subd. (a)), and therefore provide the necessary factual details to properly authenticate the document.” (Id. at p. 1062.)

The instant case is distinguishable from Espejo because, as in Ruiz, supra, 232 Cal.App.4th 836, here, McDonald and Russell’s declarations do not offer the critical factual connection founded on electronic security procedures existing in Espejo. McDonald and Russell did not detail security precautions that would have precluded transmission and use of an applicant’s e-signature by someone else. (Espejo, supra, 246 Cal.App.4th at p. 1062.) Also, although McDonald and Russell stated “the steps an applicant would have to take to place his or her name on the signature line of the employment agreement and the [Arbitration Agreement]” (ibid.), their statements contained contradictory, inconsistent procedures and facts.

We conclude there was little, if any, evidence that an e-signature in Duenas’s name could only have been placed on the Arbitration Agreement by a person using a unique login ID and password provided to Duenas, which was not known by any other Adecco employee; that all Adecco employees were required to use their unique login ID’s and passwords when they logged into the US Verify system and signed the onboarding electronic forms and agreements; and that the e-signature on the Arbitration Agreement therefore could only have been made by Duenas on May 18, 2015, at 1:52:45 p.m. CST, as stated on the document. (Ruiz, supra, 232 Cal.App.4th at p. 844.)

3. Duenas’s Declarations Disputing E-signature Authenticity

Duenas challenged the authenticity of the Arbitration Agreement by stating in her two declarations that she did not review or sign the Arbitration Agreement. The Arbitration Agreement was one of numerous documents displaying her e-signature, dated May 18, 2015, which Duenas states she never signed or saw before the inception of the instant litigation.

Duenas further states in her supplemental declaration that there were peculiarities in the onboarding documents attributable to her. Some of the documents were filled out in ways that were contrary to how she would have normally completed the documents, thus indicating she did not complete or sign the documents, including the Arbitration Agreement.

Duenas states in her supplemental declaration that she noticed, upon reviewing the documents attached to Russell’s supplemental declaration, that there were “a couple of completed items that were not things I would have done if I [had] completed the forms.” She notes the following anomalies: First, on the employee’s withholding allowance certificate tax form, the box for single or married is checked and only one allowance is indicated. Duenas normally checks the head of household box and claims two allowances on her tax forms, because she has a son and is a single parent.

Second, on the W-4 form, A through H of the personal allowances worksheet is not filled out. Duenas normally would fill this out.

Third, page 2 of the Background Authorization and Release is not dated and, instead, next to the e-signature states, “some date.” Duenas asserts she would not have written this. She would have entered the date she signed the document.

Fourth, on the background request form, the cell phone number box is blank. Duenas asserts she would have completed this because she had at that time and presently has a cell phone. Also, under the address history section, there is only one line of address history completed, whereas Duenas moved several times over the past 10 years. Duenas asserts she would have provided all of her past addresses for the 10-year period. In addition, in the section under personal information on page 43 of the form, Duenas’s middle name is omitted but on pages 36 and 44 it is included. Duenas asserts that she would have always included her middle name.

Fifth, contrary to the easy pay, direct deposit document, Duenas states in her declaration that she was paid by check, which she picked up at the Adecco office. She claims she was not paid by direct deposit, even though there is a completed direct deposit form included with her US Verify documents.

Adecco argues that Duenas personally completed and e-signed onboarding documents, which included the easy pay direct deposit document e-signed on May 18, 2015. The easy pay direct deposit document is included with the other onboarding US Verify documents attached to Russell’s supplemental declaration. Adecco also filed additional sealed payroll documents and a declaration by Adecco’s payroll specialist, Loretta Dunn, in an attempt to refute Duenas’s statements that she picked up her paychecks at an Adecco office and never saw or signed the easy pay direct deposit document.

The supplemental sealed payroll documents are inconsistent with the easy pay direct deposit document showing an e-signature attributable to Duenas on May 18, 2015. Dunn’s declaration and the sealed payroll record documents authorizing direct deposit of Duenas’s pay indicate that direct deposit for Duenas was not initiated or effective until September 25, 2015. The electronic signatures on the Arbitration Agreement and other onboarding documents are dated May 18, 2015. Therefore, the contradictory direct deposit evidence does not refute Duenas’s assertion she did not sign the Arbitration Agreement or other documents. According to the supplemental sealed payroll evidence, Duenas did not receive direct deposit of her pay until October 2015, the final month of her employment with Adecco. Duenas’s statement in her declaration that she was paid by check, which she picked up at an Adecco office, was not incorrect, other than possibly as to the final month of her employment. Regardless, the payroll evidence by no means establishes that Duenas e-signed the Arbitration Agreement on May 18, 2015.

4. Adecco’s Countersignature on the Arbitration Agreement

Adecco argues that the trial court improperly based its ruling denying the motion to compel arbitration in part on Adecco failing to authenticate Adecco’s countersignature on the Arbitration Agreement. Adecco argues that its countersignature is irrelevant because the Arbitration Agreement is enforceable regardless of whether Adecco countersigned it.

We first note it is unclear from the record whether the trial court actually relied on this factor, because there is no statement of decision and the trial court’s minute order denying the motion to compel arbitration does not mention the countersignature. Furthermore, we disagree that evidence regarding the countersignature was irrelevant in the instant case. Such evidence, in conjunction with other evidentiary inconsistencies, contradictions, and anomalies, supports a reasonable inference Duenas’s e-signature on the Arbitration Agreement may have been invoked contrary to standard onboarding procedures, by someone other than Duenas. The Adecco countersignature on the Arbitration Agreement is suspect because it is a handwritten signature by someone other than McDonald. Russell and McDonald both stated McDonald would have been the one who countersigned the Arbitration Agreement. There is no evidence explaining the circumstances leading to the handwritten countersignature by someone other than McDonald.

Based on the totality of the evidence, we conclude the trial court properly denied Adecco’s motion to compel arbitration on the ground Adecco failed to prove Duenas’s purported e-signature on the Arbitration Agreement was “the act of” Duenas and was thus authentic. (Civ. Code, § 1633.9, subd. (a).)

V.

DISPOSITION

The trial court order denying Adecco’s motion to compel arbitration is affirmed. Duenas is awarded her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.