Valdez v. Tesla CA1/4

Filed 9/24/21 Valdez v. Tesla CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

BRANDON VALDEZ,
Plaintiff and Respondent,
A160610, A160922
v.
TESLA, INC. et al., (Alameda County
Super. Ct. No. RG20049344)
Defendants and Appellants.

When plaintiff Brandon Valdez brought this employment
discrimination action against his former employer, Tesla, Inc. (Tesla), and his
supervisor Caleb Moore, defendants moved to compel arbitration, contending
Valdez electronically signed an arbitration agreement when he accepted his
job offer. The trial court denied their motions on the ground defendants did
not establish the authenticity of the electronic signature. We conclude that
the trial court misapplied the shifting burdens applicable to motions to
compel arbitration and reverse the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Valdez began working for Tesla on October 2, 2016. Valdez brought
this action against Tesla and Moore on January 7, 2020, alleging that Tesla
wrongfully terminated his employment and failed to accommodate a

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disability, that it discriminated against him, and that Moore made false and
defamatory statements regarding Valdez’s absence from work.
Tesla moved to compel arbitration and dismiss the action or stay the
proceedings, contending Valdez was bound by an agreement to arbitrate he
signed electronically before his employment began, and Moore filed a
demurrer or, in the alternative, motion to compel arbitration incorporating by
reference Tesla’s argument. In support of the motion, Tesla provided a
declaration by Willette Dimaya, who was a project specialist in Tesla’s
recruiting operations department.
Dimaya averred as follows: In connection with her position at Tesla,
she was familiar with its hiring procedures and employment policies and
practices. Dimaya oversaw the applicant tracking and onboarding system
Tesla used until fall 2018 for its non-managerial employees, known as the
“Taleo” system. She was “familiar with and [had] personal knowledge
regarding how Tesla’s applicant tracking systems and onboarding systems
operate and, generally, how the data in those systems is electronically
stored.” With appropriate permissions she could view applicants’ Taleo
history, and she caused all relevant documents from Valdez’s Taleo history,
which were attached to her declaration, to be printed.
According to Dimaya, in 2016 Tesla required all applicants for non-
managerial, hourly positions to apply through Taleo. Taleo required the
applicant to create an account on the “Tesla Careers” website with first and
last name, email address, and phone number and to create a unique
username and password known only to the applicant before continuing with
the application. On September 23, 2016, Valdez submitted an online job
application for a production associate position using this system, and he
provided personal information, including his home address, email address,

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and work history. Tesla sent Valdez an email three days later using the
email address he provided when he completed his application; the email
contained a link to an employment offer letter. Valdez had to log into his
account using his unique username and password to open the link. The offer
letter contained an agreement to arbitrate all claims arising out of his
employment. In order to accept and electronically sign his offer for
employment, Valdez was again prompted to enter his first and last name,
email address, and password. According to Taleo’s records as Dimaya
interpreted them, Valdez electronically signed the offer letter containing the
arbitration provision. Valdez began working for Tesla a few days later.
Dimaya’s declaration attached in exhibit A a copy of a September 26,
2016 email from Tesla to Valdez extending an offer of employment and
informing him he could view and sign the offer letter by following a link in
the email. Exhibit B to the declaration is a seven-page document. Each of
the first six pages notes, at the bottom, a page number out of six (e.g., Page 1
of 6). The first four pages of the document are comprised of the offer letter
containing the arbitration provision, with blank lines for signature and date
on the fourth page. The fifth and sixth pages are a notice to the employee
with wage and workers’ compensation information with a signature line and
a notation that the employee’s signature “merely constitutes
acknowledgement of receipt.” The seventh and final page of the document,
which states, “Powered by Taleo,” has a header stating, “Electronic
Signature” and numbering the page “7 of 7.” This page has a “Password
Verified” box that is checked; states, after the word “Name,” “Brandon
Valdez”; bears the date September 26, 2016; and includes a long
alphanumeric code identified as the “Signature ID.” That same code appears
in a one-line header across the top of each of the first six pages, along with

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the words “Accepted offer,” Valdez’s name, a date the document was
“Esigned,” and a notation with the page number out of seven (e.g., “Page: 1 of
7”).
In his brief opposing Tesla’s motion to compel arbitration, Valdez
argued that Tesla could not show he signed an agreement to arbitrate, that
he in fact did not do so, and that there was “no evidence of what the screens
presented to Mr. Valdez even said before he allegedly clicked a button for an
electronic signature.” He contended there was “no evidence that the
electronic signature offered by [Tesla] even corresponds to the offer letter at
all” or that he was required to provide his account information and unique
password in order to sign the agreement electronically. However, Valdez did
not submit a declaration stating he did not sign, or did not recall signing, the
agreement, nor any other evidence that the purported electronic signature
was invalid.
On May 28, 2020, the trial court denied Tesla’s motion to compel
arbitration, finding it had not met its burden of proving the existence of a
valid arbitration agreement by a preponderance of the evidence. According to
the court, Dimaya’s declaration did not set forth an adequate foundation to
support a reasonable inference she was personally familiar with the security
features of the Taleo system, and there was no indication she was directly
involved with Valdez’s hiring. The court noted in its order that it had issued
a tentative ruling granting Tesla the opportunity to conduct limited discovery
on Valdez’s allegation that he did not sign an arbitration agreement, but that
Tesla opposed the tentative ruling on the ground it had already submitted
sufficient evidence of an agreement to arbitrate.
The trial court did not rule immediately on Moore’s demurrer and
motion to compel arbitration, but rather granted him leave to conduct limited

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discovery regarding Valdez’s claim that he did not sign the arbitration
agreement, and it said Moore should submit at least one declaration
regarding the security features of the Taleo system. There is no indication
Moore did so. On August 19, 2020, the court overruled Moore’s demurrer and
denied his motion to compel arbitration.
Tesla and Moore filed timely appeals of the trial court’s orders, and we
consolidated the appeals for purposes of oral argument and decision. Valdez
does not dispute that, if the arbitration agreement is valid, Moore is also
entitled to its benefit.
DISCUSSION
I. Legal Framework
In California, the “ ‘[g]eneral principles of contract law determine
whether the parties have entered a binding agreement to arbitrate.’ ”
(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236.) Although public policy favors arbitration, that
policy “ ‘ “ ‘does not extend to those who are not parties to an arbitration
agreement.’ ” ’ ” (Espejo v. Southern California Permanente Medical Group
(2016) 246 Cal.App.4th 1047, 1057 (Espejo).)
We review an order denying a motion to compel arbitration for abuse of
discretion unless the matter presents a pure question of law, in which case
our review is de novo. (Espejo, supra, 246 Cal.App.4th at pp. 1056–1057.) To
the extent the court’s decision is based on disputed facts, we review the
decision for substantial evidence. (NORCAL Mutual Ins. Co. v. Newton
(2000) 84 Cal.App.4th 64, 71.) As we shall explain, a pivotal question in this
case is whether Valdez was required to submit evidence that he did not
electronically sign the purported arbitration agreement in order to counter a
properly presented motion to compel arbitration. This presents a legal

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question, subject to our de novo review. (See Espejo, at p. 1057 [whether
defendants had to present evidence to authenticate arbitration agreement is
legal question].)
When a party has filed a petition to compel arbitration, the trial court
must determine in a summary proceeding whether an “agreement to
arbitrate the controversy exists.” (Code Civ. Proc., §§ 1281.2, 1290.2;
Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412–
413.) In that proceeding, “[b]ecause the existence of the agreement is a
statutory prerequisite to granting the petition, the petitioner bears the
burden of proving its existence by a preponderance of the evidence. If the
party opposing the petition raises a defense to enforcement—either fraud in
the execution voiding the agreement, or a statutory defense of waiver or
revocation [citations]—that party bears the burden of producing evidence of,
and proving by a preponderance of the evidence, any fact necessary to the
defense.” (Rosenthal, at p. 413; accord, Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 972.)
This inquiry is made through a three-step process involving shifting
burdens. In the first step, a party seeking to compel arbitration must state
verbatim the arbitration provisions in the alleged agreement or provide a
copy physically or electronically. (Cal. Rules of Court, Rule 3.1330; Condee v.
Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 (Condee).) The
movant “may meet [its] initial burden to show an agreement to arbitrate by
attaching a copy of the arbitration agreement purportedly bearing the
opposing party’s signature.” (Espejo, supra, 246 Cal.App.4th at p. 1060;
accord, Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067
(Fabian) [party “met its initial burden to show an agreement to arbitrate by
attaching a copy of the Contract to its petition, which purportedly bears

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[plaintiff’s] electronic initials and signature”]; Molecular Analytical Systems
v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 710 [same].) At
this initial stage “it is not necessary to follow the normal procedures of
document authentication”; instead, a party filing a motion to compel
arbitration “need only allege the existence of an agreement and support the
allegation as provided in rule 371 [now California Rules of Court, rule
3.1330].” (Condee, at pp. 218–219, italics added to first quote.)
If the moving party meets this initial burden to show an agreement to
arbitrate purportedly signed by the opposing party, then, in the second step,
the burden shifts to the opposing party to show the agreement is false or
invalid, for instance by challenging the validity of an electronic signature.
(Condee, supra, 88 Cal.App.4th at p. 219; Fabian, supra, 42 Cal.App.5th at
p. 1067; Espejo, supra, 246 Cal.App.4th at p. 1060.) We will discuss this
prong of the test in greater detail below.
Third, if the opposing party meets this burden, the moving party must
then prove by a preponderance of the evidence that the signature was
authentic. (Fabian, supra, 42 Cal.App.5th at p. 1067; Espejo, supra, 246
Cal.App.4th at p. 1060.) Where the issue is the authenticity of an electronic
signature, this burden is “ ‘not great’ ” and may be carried “ ‘in any manner,’
including by presenting evidence of the contents of the contract in question
and the circumstances surrounding the contract’s execution.” (Fabian, at
pp. 1067–1068; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th
836, 844 (Ruiz); Civ. Code., § 1633.9, subd. (a) [electronic signature is
attributed to a person if it is the act of the person]; Evid. Code., § 1400
[authentication of writing].)
Valdez suggests that Condee’s three-part burden-shifting approach has
been undermined by Toal v. Tardif (2009) 178 Cal.App.4th 1208 (Toal). The

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court in Toal, in considering a challenge to a judgment confirming an
arbitration award, concluded that a party did not meet its burden to prove
the existence of a valid arbitration agreement simply by submitting a copy of
the contract signed by the opposing party’s attorney rather than by the party
personally. (Id. at pp. 1213, 1223.) In the course of setting out the governing
law, the court explained that Rosenthal requires the petitioner to establish
the existence of an arbitration agreement by a preponderance of the evidence;
in a footnote, the Toal court said that to the extent the burden-shifting
approach found in Condee conflicts with Rosenthal, the Supreme Court
decision is controlling. (Toal, at p. 1219 & fn. 8.)
The court in Espejo considered and rejected a contention that this
portion of Toal “ ‘called into doubt’ ” Condee’s approach, explaining, “In
context, the brief discussion of Condee by the court in Toal regarding a
petitioner’s ultimate burden has no bearing on the question before us—
whether defendants may meet their initial burden to show an agreement to
arbitrate by attaching a copy of the arbitration agreement purportedly
bearing the opposing party’s signature. We conclude they may, in compliance
with the requirements of section 1281.2 and California Rules of Court, rule
3.1330.” (Espejo, supra, 246 Cal.App.4th at pp. 1059–1060.) We agree with
Espejo that the burden-shifting approach of Condee and its progeny does not
conflict with Rosenthal’s requirement that the party seeking arbitration
establish the existence of an arbitration agreement.
II. Analysis
As our discussion has shown, a party’s initial burden in moving to
compel arbitration is not great, and Tesla met it by attaching a copy of what
purports to be the electronically signed agreement to its petition. (Espejo,
supra, 246 Cal.App.4th at p. 1060; Fabian, supra, 42 Cal.App.5th at p. 1067.)

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The trial court, however, appears to have ignored the burden-shifting
analysis the governing authorities set forth; instead, it decided as an initial
matter that defendants failed to authenticate Valdez’s signature and denied
the motions on that basis, rather than considering whether Valdez
adequately challenged the electronic signature so as to shift to defendants the
burden of authenticating the agreement. This, we conclude, was error under
the rule that authentication at the initial step of the process is unnecessary.
(Condee, supra, 88 Cal.App.4th at p. 219.)
Our inquiry thus moves to whether Valdez met his burden to challenge
the authenticity of the purported agreement. Valdez contends he was
required to do no more than point to the lack of a handwritten signature and
what he characterizes as the inadequacy of the evidence submitted by Tesla
to show the electronic signature was authentic. In effect, this challenge is to
the adequacy of defendant’s initial showing. But we have concluded that
under the correct legal standards, defendants met their initial burden by
attaching the arbitration agreement purportedly signed electronically by
Valdez.
The weakness in Valdez’s position is that he submitted no evidence he
did not electronically sign the offer letter that contained the arbitration
clause. He points to no authority, and our own research has disclosed none,
in which a party opposing arbitration on this ground has been held to meet
his burden without providing, at a minimum, a declaration under penalty of
perjury stating he or she did not sign or does not recall signing the
agreement. Rather, courts have consistently relied on a declaration
contesting signature in some form as an evidentiary basis for a finding that
the signature is not valid.

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 In Ruiz, relied upon by the trial court for its conclusion that Tesla did
not provide facts to support an inference that only the plaintiff could have
logged on to the human resources system and signed an arbitration
agreement, the plaintiff averred in a declaration that he did not recall
signing the arbitration agreement and would not have done so if presented
with it. (Ruiz, supra, 232 Cal.App.4th at p. 840.) It was in this context that
Ruiz explained, “[p]roperly understood, Condee holds that a petitioner is not
required to authenticate an opposing party’s signature on an arbitration
agreement as a preliminary matter in moving for arbitration or in the event
the authenticity of the signature is not challenged.” (Id. at p. 846, citing
Condee, supra, 88 Cal.App.4th at pp. 218–219.) The court went on to explain
that “[i]n the face of Ruiz’s failure to recall signing the 2011 agreement, Moss
Bros. had the burden of proving by a preponderance that the evidence that
the electronic signature was authentic [citation], that is, it was what Moss
Bros. claimed it was: ‘the act of’ Ruiz.” (Ruiz, at p. 846, italics added.) Ruiz
does not establish that, once an initial showing of a signed arbitration
agreement has been made, a party opposing arbitration may shift the burden
to authenticate a signature without an iota of evidence that the signature is
invalid.
We are not aware of any cases that shift the burden back to the moving
party without some evidence tending to show that the signature is not
authentic. Our colleagues in Division Five of this court recently affirmed a
trial court order denying a petition to compel arbitration on the ground an
employer did not properly authenticate an electronic signature, but there the
employee provided a declaration and other evidence showing she never
reviewed or signed the arbitration agreement. (Bannister v. Marinidence
Opco, LLC (2021) 64 Cal.App.5th 541, 543–544, 546–547.) Similarly, in

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Espejo, the defendants had the burden to authenticate an electronic
signature on an arbitration agreement after the plaintiff provided a
declaration stating he did not recall signing an arbitration agreement, that
his normal practice was to review documents before he signed them, and that
he therefore believed he would not have signed the agreement one minute
after signing an employment contract. (Espejo, supra, 246 Cal.App.4th at
pp. 1054, 1060; accord, Fabian, supra, 42 Cal.App.5th at pp. 1065, 1067
[because plaintiff declared she did not sign contract, defendant had burden to
prove electronic signature was authentic]; see also Sprunk v. Prisma LLC
(2017) 14 Cal.App.5th 785, 793–794 [“merely contest[ing] the sufficiency of
[defendant’s] preliminary evidentiary showing” was not a “challenge [to] the
truth of [defendant’s] claim that each class member signed an arbitration
provision”].)
A party opposing arbitration does not face a high bar. If a person can
state under penalty of perjury either that he or she did not sign the
agreement or that he or she does not recall doing so and would not have done
so under the circumstances, that is sufficient. (See, e.g., Fabian, supra, 42
Cal.App.5th at pp. 1065, 1067; Espejo, supra, 246 Cal.App.4th at pp. 1054,
1060; Ruiz, supra, 232 Cal.App.4th at p. 840.) In electing not to provide such
a declaration or other evidence, Valdez failed to meet his burden to show that
the validity of the electronic signature was contested and, as a result, did not
shift to defendants the burden to prove its authenticity.
In reaching this conclusion, we do not suggest a party opposing
arbitration may never prevail by pointing out the insufficiency of the moving
party’s evidence of an agreement to arbitrate. (See Toal, supra, 178
Cal.App.4th at pp. 1219, fn. 8 & 1223 [existence of valid arbitration contract
is not shown by agreement signed by party’s attorney rather than party].)

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But Valdez has made no such showing. He argued through counsel below
that he did not physically sign the offer letter and that there is no evidence
showing what he did to complete the application or that the electronic
signature corresponded to the offer letter. But Tesla’s email to Valdez
presented him with an offer to be signed online, rather than physically, and
that offer unquestionably contained an arbitration provision. Dimaya’s
declaration attaches and explains an offer letter that appears to have been
sent to, and acknowledged with an electronic signature by, Valdez. Tesla and
Moore thus carried their initial burden to make a prima facie showing of a
signed agreement, and in the absence of any contrary evidence from Valdez,
defendants are not required to authenticate his signature. We need not
decide whether, if Valdez had submitted evidence contesting that he signed
the offer letter, defendants’ evidence would have sufficed to establish the
electronic signature’s authenticity. (See Fabian, supra, 42 Cal.App.5th at
p. 1067.) Our analysis terminates with step two of the three-step process.
We conclude the trial court erred as a matter of law in denying the motions to
compel arbitration on the ground defendants did not show Valdez’s signature
was authentic.
III. Other Issues
In the trial court, Valdez also challenged the arbitration agreement as
uncertain and unconscionable. The trial court did not reach these issues, and
Valdez does not argue on appeal that we should affirm the orders on this
basis. We accordingly do not consider them, but nothing we say is intended
to prevent the trial court from doing so on remand. (See Condee, supra, 88
Cal.App.4th at p. 219.) Indeed, counsel for Tesla acknowledged at oral
argument that remand to allow the court to address these other issues was
proper. She also contended, and we agree, that Valdez is not entitled to a

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second attempt on remand to contest the authenticity of his electronic
signature, since existing law required a non-moving party to introduce
evidence in order to contest the authenticity of an arbitration agreement,
once the moving party had met its initial burden. (See, e.g., Espejo, supra,
246 Cal.App.4th at p. 1060; Fabian, supra, 42 Cal.App.5th at p. 1067.)
Finally, we disregard Valdez’s citation to an unpublished case of
Division Five of this court, Vaughn v. Tesla, Inc. (May 21, 2019, A15475)
[nonpub. opn]. The issue in Vaughn is different from the one before us here,
and the collateral estoppel exception to the general rule that parties may not
cite or rely on unpublished cases does not apply. (Cal. Rules of Court, rule
8.1115(b)(1).)
DISPOSITION
The orders denying defendants’ motions to compel arbitration are
reversed and the case is remanded for further proceedings in conformity with
this opinion. In the interests of justice all parties shall bear their own costs
on appeal.

_________________________
TUCHER, J.*

WE CONCUR:

_________________________
POLLAK, P. J.

_________________________
BROWN, J.

Valdez v. Tesla, Inc. et al. (A160610, A160922)

Presiding Justice of the Court of Appeal, Court of Appeal, First Appellate District, Division
*

Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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