California Mediation and Arbitration

Arbitration, Authentication, Standard Of Review, Employment: First District Div. 5 Agrees That Employer Failed To Authenticate Electronic Signature On Arbitration Agreement

Authentication Of Electronic Signatures Continues To Trip Up Employers.

        The trial court denied the employer's motion to compel arbitration, because the employee Bannister "presented evidence that she never saw the [arbitration] agreement during the  onboarding process and did not affix her  electronic signature to it," and the  Court of Appeal affirmed. Maureen Bannister v. Marinidence Opco, LLC, et al., A159815 (1/5  5/21/21) (Burns, Simons, Rodriguez).

        When an appeal from a denial of a  motion to arbitrate turns on undisputed facts, the Court of Appeal reviews the trial court's ruling for  substantial evidence. If the facts are undisputed, then the  review  of the  trial court's finding can be a  question of  law. Here, the court  agreed that  the outcome is  the same regardless of  the  standard applied. The trial court concluded that, given conflicting evidence, the employer failed to  prove by "a preponderance of the evidence" the existence of an arbitration agreement. And the Court of  Appeal defers to the trial court's determination of the credibility of witnesses and weight of the evidence.

        COMMENT: Civil Code section 1633.9, subdivision (a), governs the authentication of electronic signatures. It provides: "(a) 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."

Arbitration, Health Care: Wife's Employment Under CalPERS Agreement Means Husband Is Bound By Kaiser Arbitration Requirement

Because Enrollment Process Was Handled By CalPERS, Statutory Requirements That Notice Of Arbitration Be Conspicuous in a Health Plan Did Not Apply.

        Edward William Kuntz's wife, children, and estate sued Kaiser for Elder Abuse and other claims, and Kaiser move successfully to compel arbitration of the Elder Abuse claim and stay the other claims. This outcome was upheld by the Court of Appeals. Edward William Kuntz et al. v. Kaiser Foundation Hospital, et al., C087967 (3d Dist. 4/12/21) (Murray, Robbie, Krause) (certified for partial publication).

        The first two section of the opinion are unpublished and the third section is published.

        In the first two sections, the court agrees that the decedent was enrolled in the Kaiser plan, though no enrollment form was produced. Mr. Kuntz was enrolled through his wife's  This conclusion was based on Kaiser enrollment record keeping and a declaration, evidence that apparently was not objected to. Furthermore, the court could find no legal requirement that enrollment could only be proven through an enrollment application form.

            Mr. Kuntz was enrolled as a member of the Kaiser Health Plan, through his wife’s employment under a California Public Employees’ Retirement System (CalPERS) Group Coverage Agreement between Health Plan and the Board of Administration of CalPERS. The enrollment process was administered by CalPERS.

        In the third section, the court addresses whether Health and  Safety Code § 1361.1 requirements apply to CalPERS enrollments. Section 1361.1 requires that the enrollment form signed by the subscriber contain a prominently displayed arbitration notice, and such a notice did not exist here. However, the court agreed that Government Code  § 22869 applied to CalPERS, which handled the enrollment process, and as a consequence, the materials disseminated by CalPERS were automatically deemed to satisfy the requirements of § 1361.1. Read the case and code sections, lest this be opaque.