Because Defendant Introduced Key Evidence In Supplemental Declaration, Rather Than In Moving Papers, Court Had To Address The Burden Of Proof.
Yes, it happens. Sometimes, a published case deserving a post escapes my net. However, Espejo v. Southern California Permanente Medical Group, (2nd Dist. Div. 4 2016) (Collins, Epstein, Willhite), though filed back on April 22, is worth a post, because it systematically addresses how to authenticate an arbitration agreement with an electronic signature, and who has the burden of proof. I have addressed authentication issues in posts on January 4, 2015 (Ruiz v. Moss Bros. Auto Group) and on December 31, 2014 (JBB Investment Partners).
In Espejo, the defendants moving to compel arbitration submitted key evidence in a supplemental declaration, rather than in their initial moving papers. This put at issue whether the burden to authenticate fell upon them in their moving papers, or whether they could timely present evidence of authentication later after the plaintiff opposing arbitration questioned the authenticity of his electronic signature. The Court of Appeal concluded that while the moving parties had the initial burden of establishing the existence of an arbitration agreement, that burden did not include authentication. Therefore, their introduction of evidence to establish authenticity after plaintiff questioned authenticity was still timely. The Court distinguished Toal v. Tardif, 178 Cal.App.4th 1208 (2009), in which the party seeking arbitration submitted a copy of the contract signed by the party’s attorney – those facts did not satisfy the initial burden of showing that an agreement existed between the parties to arbitrate.
Espejo lays out a roadmap for authenticating an electronically signed document. The employee applicant used a private and unique username and password provided to him orally and by phone. After logging in, he had to re-set his password and choose his own password. Without resetting his password, he could not proceed. He then had to agree to complete employment documents using an electronic signature. Then he was directed to hyperlinks to key documents, including the Dispute Resolution Procedure containing the arbitration provisions. He was prompted on the signature page of the employment agreement to accept or decline it. If he accepted, he was prompted to complete his name, which then populated the signature line. The final employment agreement included the name, date, time, and the IP address where the applicant electronically signed the agreement. The same procedure applied to the Dispute Resolution Procedure.
COMMENT: The procedure for authentication here seems pretty solid, and therefore useful as a yardstick for evaluating whether an electronic authentication procedure measures up to authentication requirements – at least until the next case comes along.