Arbitration Agreement Had Signature With Employee's Name, But Employer Failed To Carry Burden Of Authentication.
Tropicale appealed the denial of its motion to compel arbitration against employee Garcia. Ana Garcia v. Tropicale Foods, Inc., E069024 (4/2 1/22/19) (Raphael, Miller, Slough) (not certified for publication). The issue was whether Tropicale failed to prove by a preponderance of the evidence that Garcia signed an arbitration agreement.
The opinion helpfully lays out the shifting burden of proof: (1) Tropicale met its initial burden by attaching the agreement purportedly bearing Garcia's signature; (2) Garcia denied signing; (3) the burden shifted to Tropicale to produce evidence the signature was authentic.
Tropicale produced two pieces of evidence: (1) a declaration of its Human Resources Coordinator Jara; (2) comparison of the signature on the agreement with Garcia's signature on a declaration. The declaration of Jara, however, was just an assertion that Garcia signed, without specific details as to any circumstances surrounding the signature. Moreover, it was somewhat self-destructing, because it claimed on the one hand that it had come to the company's attention that Garcia had not signed, and on the other hand, that Garcia's agreement was "executed . . . . in the ordinary course of business . . . " Curious, that.
As to a comparison of signatures, one included Garcia's middle initial, the other did not. The judge did not have to conclude that the signature was authentic.
Finally, there were evidentiary objections to Garcia's declaration. Garcia was Spanish speaking, and her attorney had translated her declaration. However, a translator who is unbiased and adequately skilled serves as a "language conduit", so that the translation is considered to be the statement of the original declarant, not that of the translator, thereby escaping the hearsay objection. How the trial court concluded that the attorney/translator was fair and unbiased is somewhat murky. However, the Court of Appeal points out that the trial court does not need to articulate the reasons, and in overruling Tropicale's objections, the trial court "impliedly found" that the attorney was acting as a "language conduit". Apparently the attorney represented that he was "fluent in Spanish" and "accurately translated" Garcia's declaration.
COMMENT: We have blogged many times on problems enforcing arbitration clauses arising out of the fact that a signature was missing or could not be authenticated, and also, that the employee spoke a foreign language as their primary language. This is an area where, if it is important to enforce the arbitration agreement, it is important to dot the i's and cross the t's. Best practices ought to include getting signatures from both parties at the time the agreement is entered into, having legible signatures, ideally being able to identify and locate a witness to the signatures (otherwise, one can only testify to general business practices, which may or may not have been followed), and translating documents for the foreign language speaker. Authenticating electronic signatures -- not an issue in this case -- can present additional problems. See our June 1, 2016 post on Espejo v. Southern California Permanente Medical Group, concerning authentication, burden of proof, and electronic signatures.
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