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Court of Appeal:
Failure to Recall Signing Insufficient to Rebut Signature
Justice Franson Says No Factual Dispute Is Created Absent Express Denial of Authenticity; Contrary Decision From Div. Seven of Los Angeles-Based Appeals Court Is Rejected
By Kimber Cooley, Staff Writer
The Fifth District Court of Appeal held yesterday that if a party, being capable of recognizing his own writing, does not deny a handwritten signature as his own, the proclaimed lack of memory of having signed the document does not create a factual dispute.
In so declaring, the justices rejected contrary reasoning in a Nov. 30, 2021 opinion from Div. Seven of this district’s Court of Appeal.
The decision comes in a case where an employee challenged the existence of an arbitration agreement on the basis of lacking a recollection of having signed a copy of an employee handbook, containing an arbitration provision, presented to him upon his acceptance of employment.
Justice Donald R. Franson Jr. wrote the unpublished opinion reversing an order by Kern Superior Court Judge David R. Zulfa denying the motion to compel arbitration. Acting Presiding Justice Bert Levy and Justice Charles S. Poochigian joined in the opinion.
Appealing the denial was Golden Queen Mining Company, LLC, the operator of a gold and silver mine in the Soledad Mountain Project, located in Kern County. The open-pit mine operates 24 hours per day, 365 days per year, using equipment sourced outside of California and sells the recovered precious metals to an out-of-state refinery.
Handbook Provided
In March 2019, Carlos Ramirez was hired by the company to perform electrical work. As part of the onboarding process, he was provided with an employee handbook containing an agreement to arbitrate disputes in accordance with the Federal Arbitration Act.
After his employment with the mining operation ended, Ramirez filed a class action complaint in October 2022, alleging causes of action relating to alleged various wage and hour violations. In April 2023, Queen Mining filed a motion to compel arbitration and submitted accompanying supporting documentation.
Latasha Marshall, the company’s human resources manager, submitted a declaration asserting that Ramirez had signed the arbitration agreement and attached as exhibits copies of the two-page arbitration agreement and a handbook acknowledgement of the agreement purportedly signed by Ramirez on March 28, 2019.
Zulfa denied Queen Mining’s motion to compel, finding that the company failed to demonstrate the existence of an executed arbitration agreement. Zulfa found relevant the fact that the arbitration clause in dispute was embedded in the company’s more comprehensive employee handbook and sustained Ramirez’s evidentiary objections to Marshall’s factual assertion that Ramirez “signed an ‘Arbitration Agreement.’ ”
Franson noted that the party seeking to compel arbitration bears the burden of proving the existence of an agreement to arbitrate but that the analysis proceeds according to a three-step process.
If the moving party establishes prima facie evidence of a written agreement to arbitrate, the opposing party then carries the burden of producing evidence to challenge the authenticity of the agreement. Upon a successful challenge, the moving party then must prove the existence of a valid contract by a preponderance of the evidence.
Franson explained that a party may carry the initial burden by attaching a copy of the arbitration agreement purportedly bearing the signature of the opposing party. In the present case, he said:
“We conclude as a matter of law that Queen Mining carried its initial burden and made a prima facie showing of the existence of a written arbitration agreement. Queen Mining alleged the existence of an agreement and supported that allegation….As a result, the burden of producing evidence shifted to Ramirez.”
The jurist pointed out that “when the burden has shifted to the party opposing arbitration, that party must ‘identify a factual dispute as to the agreement’s existence’ and must present admissible evidence to support the existence of that factual dispute.”
Split in Authority
The justice acknowledged a split in authority in California appellate courts “on the question of what constitutes sufficient evidence to create a factual dispute about the authenticity of handwritten signatures.” Franson pointed to two California appellate court decisions to demonstrate the conflict.
In the 2021 case of Gamboa v. Northeast Community Clinic, the Court of Appeal for this district found an arbitration agreement to be unenforceable. Div. Seven said it did not matter that the plaintiff, a fired worker, did not expressly challenge “the authenticity of her purported 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.”
The First District came to a different conclusion. In the 2023 decision in Iyere v. Wise Auto Group, the court held that failing to recall signing an agreement alone is insufficient to create a factual dispute as to an arbitration agreement signed by hand.
Weighing in on the conflict, Franson wrote:
“[T]he First District concluded that, if a plaintiff presented with a handwritten signature on an arbitration agreement is unable to allege the signature is inauthentic or forged, the plaintiff’s failure to 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’….We agree with this conclusion and the underlying rationale.”
Obvious Omissions
Turning to the purported agreement at hand, Franson pointed out “seemingly obvious points” which were omitted from Ramirez’s declaration, such as not averring that he inspected the agreement or signature and not addressing whether the signature was inauthentic or forged. He found other omissions troubling as well, writing:
“Ramirez’s declaration did not state he did not recall signing the ‘HANDBOOK ACKNOWLEDGEMENT,’ which is the specific document relied upon by Queen Mining….The distinction between a signed arbitration agreement and a signed acknowledgement is significant…because Ramirez’s opposition papers explicitly raised that distinction….[O]ne of the grounds asserted in his objection…was that Ramirez never signed an arbitration agreement and only purportedly signed an acknowledgement….Thus, the wording of Ramirez’s declaration leaves open the possibility that he does recall signing the acknowledgement.”
He continued:
“His declaration does not assert the signature on that document is not his and, furthermore, does not even state that he cannot recall signing that particular document. Consequently, we conclude Ramirez, like the plaintiffs in Iyere, has offered no admissible evidence creating a dispute as to the authenticity of the handwritten signature on the acknowledgement.”
Under these circumstances, Franson declared that “the burden of producing evidence never shifted back to Queen Mining.”
The case is Ramirez v. Golden Queen Mining Company, LLC, F086371.
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