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Laura Ramos sued her former employer Smile Brands, Inc., for various causes of action pertaining to the termination of her employment. Brands is a dental business, headquartered in Irvine California, with “8,000 dedicated team members at over 650 affiliated dental offices around the United States.” Beginning in 2005, Ramos worked as an office manager for Brands at several offices in the Inland Empire.

Brands moved to compel arbitration. Brands have a software program, named “SmileU,” that they use for human resource documents and employee training. The arbitration agreement was presented as a required document, in a section of SmileU entitled “Courses I Have to Do.”

Upon opening the arbitration agreement, an employee would have needed to scroll through the entire text of the agreement before checking a box at the bottom of the agreement indicating that the employee consented to the terms of the agreement. The arbitration agreement included an opt-out provision that required an opt-out form be mailed to human resources.

In opposing the motion, Ramos asserted, “[T]he Agreement attached to [Brands’ motion] is completely blank, having no date, no timestamp, no signature, no initials, or any other indication it was executed. [Brands] have also attached an excel-type printout [, i.e., the Training Record,] which lists the Agreement as one of several dozen ‘lessons’ that Ms. Ramos supposedly completed. This printout is not credible as there is no signature, date, timestamp or anything establishing its accuracy.”

In a declaration, Ramos declared that she did not sign the arbitration agreement in 2017, and she would not have signed it had she seen it. Ramos declared that she regularly checked the completed documents and courses list in SmileU, and she never saw an arbitration agreement listed there. Ramos declared that the Training Record, filed by Brands, included other errors. For example, the Training Record reflected Ramos completed courses on days she was not at work.

The trial court denied the motion. In its ruling the trial court explained that Phillips’s “declaration does not establish that [Ramos] accessed, reviewed and electronically signed the Arbitration Agreement. [¶] The ‘Mutual Arbitration Agreement’ produced by Brands does not contain an actual ‘electronic signature’ of [Ramos]. [¶] Nowhere in the Arbitration Agreement is [Ramos] identified by name. [¶] Nor does the document contain an electronic signature bearing her name, or any date to show that it is the precise Arbitration Agreement reviewed or signed by [Ramos].”

The Court of Appeal affirmed the trial court in the unpublished case of Ramos v. Smile Brands – E077394 (December 2022).

Brands provided an arbitration agreement without a signature and without a checkmark, but Brands also provided a Training Record reflecting that Ramos’s arbitration agreement was “[c]omplete.” For the sake of argument, the Court of Appeal presumed, without deciding, that such evidence satisfied Brands’ prima facie burden of proof that there was an arbitration agreement between the two parites. At that point, the burden shifted to Ramos.

“In the declaration, Ramos explained that she typically reviews legal documents with her husband and one of her sons, who works in the legal field. In 2012, Brands gave Ramos an arbitration agreement, and she discussed the 2012 arbitration agreement with her husband and son prior to rejecting it. Ramos explained that she would have remembered if she saw the arbitration agreement in 2017 because she had rejected it in 2012 and therefore would have discussed it again with her husband and son. Ramos declared that the first time she saw the 2017 arbitration agreement was when her attorneys showed it to her as part of the instant litigation.

The testimony of a single credible witness may constitute substantial evidence.” (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 793.)

“Ramos’s declaration is not a conclusory, self-serving statement. Rather, the declaration includes an explanation as to why Ramos is able to credibly assert that she did not see nor sign the 2017 agreement. In sum, we are not persuaded that Ramos’s evidence is insufficient. To the contrary, it is substantial evidence on which the trial court could reasonably rely.”

The burden shifted back to Brands to authenticate their evidence of Ramos’s alleged consent.” … “Brands failed to present evidence of who or what created the Training Record and how the Training Record was created or generated.”