Yerena v. American Guard Services CA2/1

Filed 10/25/22 Yerena v. American Guard Services CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

JOSE LUIS YERENA, B316114

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV00124)
v.

AMERICAN GUARD SERVICES,
INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Theresa M. Traber, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre,
Corinne C. Bertsche, Steven G. Gatley and Tracy D. Forbath for
Defendant and Appellant.
Pairavi Law, Edwin Pairavi and Joshua M. Mohrsaz for
Plaintiff and Respondent.
____________________________
 American Guard Services, Inc. (AGS), appeals from an
order denying its motion to compel plaintiff Jose Luis Yerena to
arbitrate claims arising out of termination of his employment as
a security guard. The trial court found AGS failed to meet its
burden to establish Yerena had agreed to a written arbitration
agreement. Applying the applicable standards of review, we
conclude the trial court did not err in so finding and we affirm.

FACTUAL BACKGROUND1
AGS hired Yerena in 2005 to work as an unarmed security
officer. On Christmas Eve in 2018, upon returning home from
work, Yerena felt sick and experienced difficulty breathing. On
January 9, 2019, Yerena underwent emergency heart surgery.
He was unable to return to work until March 1, at which time he
contacted AGS about returning to his job. AGS never responded,
and eventually Yerena concluded AGS had terminated him.
On January 4, 2021, Yerena filed a complaint in
Los Angeles County Superior Court, alleging causes of action for
discrimination on the basis of his medical condition, failure to
provide reasonable accommodation, failure to engage in good
faith interactive process, retaliation, and wrongful termination.
AGS requested that Yerena stipulate to refer the dispute to
binding arbitration. Through his counsel, Yerena refused.
On June 9, 2021, AGS filed a motion to compel arbitration
and to stay Yerena’s civil action pending completion of
arbitration. In support of its motion, AGS submitted the
declaration of Mohamed Youssef, general counsel of its corporate

1 The facts in our Background are derived from Yerena’s
complaint and AGS’s declarations in support of its motion to
compel arbitration.

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parent. Attached as an exhibit to Youssef’s declaration is a copy
of an agreement captioned “American Guard Services, Inc.
Employment Arbitration Policy,” which required signatories “to
resolve most employment-related disputes . . . that are based on a
legal claim through final and binding arbitration.” (Some
capitalization omitted.) Although the exhibit is dated July 23,
2019, which is well after the last date Yerena worked for AGS, it
bore an electronic facsimile signature of “Luis Jose Yerena,”
stating that it had been signed on November 1, 2018 at 11:16
a.m. Above the electronic signature, on a space labeled
“Employee’s name,” is the entry “DataMappingError.” (Boldface
& underscoring omitted.)
Youssef’s declaration described the means whereby
employees electronically sign AGS arbitration agreements.
According to Youssef, employees must use a computer to “create
an account in AGS’s Employee Dashboard” in order to
“acknowledge and agree to AGS’s policies.” As part of this
process, the employee signs on to a website, where the employee
enters “his [or her] mobile phone number and email address.”
The system “automatically sends a temporary password to the
email address entered and directs the employee to a second
website.” At that second website, the employee “logs in using his
or her email address and the temporary password provided to
him or her,” whereupon the employee “is immediately prompted
to create a new password of his or her own choosing.” Using this
newly-created password, the employee is “electronically
presented with AGS’s written policies. After reading each policy,
the employee is directed to indicate [his or her] acceptance
electronically by clicking a button indicating that he or she
agrees to the policy. There is no option to decline any policy or

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move forward to the next policy without accepting the previous
policy.” Among the documents presented to employees for
approval is the “American Guard Services, Inc. Employment
Arbitration Policy.”
Youssef did not claim personal knowledge that Yerena had
in fact electronically signed the arbitration agreement. Instead,
he declared he “personally reviewed Mr. Yerena’s employment
file after this dispute arose and confirmed that his file contained
each policy acknowledgement he electronically accepted with a
time-stamped record of his acceptance.” Youssef concluded that
the arbitration agreement, and Yerena’s signature, are authentic:
“I know the electronically signed Agreement in Mr. Yerena’s
employment file (and attached hereto as Exhibit A) is authentic
and authentically bears Mr. Yerena’s electronic signature
because (a) the language in the Agreement is identical to our
standard policy, (b) the process described in this Declaration
ensured that nobody but Mr. Yerena could have accepted the
policy on his behalf, including after the fact, and (c) the
procedures AGS had in place guaranteed that if Mr. Yerena had
not accepted AGS’s arbitration policy, the Human Resources
Department would have learned of it and taken corrective
action.”
Yerena’s opposition to the motion to compel arbitration
included his declaration that disputed many of Youssef’s
assertions regarding Yerena’s electronic execution of the
arbitration agreement.2 First, Yerena stated in his declaration

2 Yerena also opposed arbitration on substantive grounds,
including unconscionability. Because the trial court did not reach
these alternate grounds, and because we conclude AGS failed to

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that he neither signed the arbitration agreement, nor authorized
his signature to be added to the document. Yerena also directly
contradicted Youssef’s description of the procedure allegedly
followed to obtain Yerena’s signature by averring that he did not
now, nor did he in 2018, “have a computer, email address, or
access to either.”3 Yerena further denied ever creating “an
account or password” with AGS. Finally, Yerena stated he
did not, and would not, sign his name as “Luis Jose Yerena,” the
name shown on AGS’s proffered copy of the arbitration
agreement.
In reply, AGS submitted a further declaration by Youssef,
which responded to Yerena’s denial that he had ever set up an
online account with AGS or electronically signed the arbitration
agreement. For employees like Yerena, who lack access to “an
internet-accessible device,” Youssef explained that “the employee
will complete the onboarding process and create their [sic] online
portal onsite at AGS’s headquarters” in Gardena. Employees use
one of four computers in the building lobby, and human resources
employees “supervise the entire process.” According to Youssef,
AGS’s records showed that it sent the arbitration agreement “to
Mr. Yerena on or about June 8, 2018 and the Agreement shows
that he signed it on or about November 1, 2018 at 11:16 p.m. [4]

show Yerena agreed to arbitrate his claims, we do not address
these other arguments.
3 ASG’s evidence appears to corroborate this assertion.
Exhibit D to Youssef’s reply declaration is a screenshot of AGS’s
employee record for Yerena, showing that the spaces for Yerena’s
“Email” and “Smartphone SMS” are blank.
4 The document in question bears a sign in time of
11:16 a.m., not 11:16 p.m.

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PST with his signature ‘Luis Jose Yerena.’ ” Based upon these
new facts, Mr. Youssef reiterated “that the electronically signed
Agreement in Mr. Yerena’s employment file is accurate and
authentically bears Mr. Yerena’s electronic signature.”
During oral argument below, the trial court focused on the
sufficiency of AGS’s evidence going to the authenticity of Yerena’s
signature on the arbitration agreement. “They’re calling into
question your showing. And I find some of the plaintiff’s
argument to be quite compelling that there’s no evidence here—
First of all, there’s evidence that at least three other people and
perhaps a fourth identified as ATF Administrator had access to
the same account. [¶] There is no indication, in the hiring
document screenshot, that there was a signature in November by
Luis Jose but only that it was sent to him. [¶] I don’t understand
how it gets sent to him and also modified by him on that day. [¶]
There’s no indication that there are security measures that would
have prevented the H.R. people for the defendant from creating
this website and signing it electronically.”
At the close of argument, the court took the matter under
submission. Later that day, the court issued its order denying
the motion to compel arbitration. The court ruled AGS had failed
to “meet its burden of showing by a preponderance of the
evidence that the parties entered into an arbitration agreement.”
The court pointed to “the absence of any showing of security
measures” ensuring that Yerena himself set up his account. The
court found, “[I]t appears that any human resources employee
could have created the online account on Plaintiff’s behalf.” The
court concluded, “[I]n the absence of evidence that Plaintiff set up
the system on June 8, 2018 or accessed it thereafter, the Court

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cannot conclude that Plaintiff ever saw the arbitration
agreement, much less that he signed it on November 1, 2018.”
The court next addressed the absence of evidence tending
to show that Yerena set up the online account. “Defendant has
offered no percipient witness attesting to Plaintiff’s use of the
on-site computers to set up an account in June 2018. Moreover,
given the list of other employees who ‘modified’ or uploaded
documents on that date, the inference from Defendant’s own
evidence is that one of its human resources employees set up the
account to populate the new system with previously filed
employment documents, like Plaintiff’s 2010 employment
application. Further, the fact that Plaintiff’s name was
incorrectly input into the employment account reinforces the
Court’s conclusion that it was not Plaintiff who created the
account or signed the arbitration agreement.”
Finally, the court rejected AGS’s argument that Yerena had
to sign the arbitration agreement as a condition of keeping his
job, such that the fact of his continued employment was implicit
confirmation that Yerena had signed the arbitration agreement.
“The Court, thus, rejects Defendant’s suggestion that Plaintiff’s
continued employment means he signed the arbitration
agreement. What is more, since there is no credible evidence that
Plaintiff ever saw the arbitration agreement, Defendant cannot
rely on the agreement itself to establish its existence. Even
though the agreement itself indicates that ‘continuation of
employment with the Company is deemed to be acceptance of this
policy’ (Youssef Decl., Exh. A, preamble[ ]), such a provision
cannot be applied to an individual who never saw the
agreement.”

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 AGS filed a timely notice of appeal.5

DISCUSSION

A. Standard of Review
“ ‘There is no uniform standard of review for evaluating an
order denying a motion to compel arbitration’ [citation]” (Fabian
v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066
(Fabian)), because the standard of review varies depending on
the basis for the trial court’s denial of the petition. (See Gamboa
v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 166
(Gamboa).) Generally, we review an order denying a motion to
compel arbitration for abuse of discretion except when the
petition presents a pure question of law. (Id. at p. 166.) When
the trial court’s ruling turns on questions of fact, the substantial
evidence standard applies, including deferring to the trial court’s
credibility findings. (Ibid.)
Here, it is undisputed that AGS bore the burden below to
prove the existence of an arbitration agreement. (Gamboa,
supra, 72 Cal.App.5th at pp. 166–167.) This is significant to our
standard of review here because “based on the court’s finding
that [the movant] failed to carry its burden of proof, the question
for the reviewing court is whether that finding is erroneous as a
matter of law.” (Fabian, supra, 42 Cal.App.5th at p. 1066; see
Gamboa, at p. 166.) Put another way, in order to prevail on
appeal, AGS must show as a matter of law, that the evidence
compelled a finding that Yerena signed the arbitration
agreement. (Gamboa, at p. 166.) This is a difficult task given

5An order denying a petition to compel arbitration is
appealable. (Code Civ. Proc., § 1294, subd. (a).)

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that we must resolve all factual and credibility findings in favor
of respondent. (Id. at p. 167.)

B. Under the Applicable Standard Of Review, AGS Fails
To Show Error Because the Record Is Not
Susceptible of an Interpretation Finding the
Existence of an Arbitration Agreement as a Matter of
Law
A party may file a petition to compel arbitration where “an
agreement to arbitrate the controversy exists” and “a party to the
agreement refuses to arbitrate that controversy.” (See Code Civ.
Proc., § 1281.2.) “Because 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.” (Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal.4th 394, 413.) “In these summary proceedings, the
trial court sits as a trier of fact, weighing all the affidavits,
declarations, and other documentary evidence, as well as oral
testimony received at the court’s discretion, to reach a final
determination.” (Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 972.)
In California, “[g]eneral principles of contract law
determine whether the parties have entered a binding agreement
to arbitrate.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th
416, 420.) AGS sought to prove Yerena had agreed to arbitrate
his claims by relying on his purported electronic signature to the
agreement. Civil Code section 1633.9 addresses how a proponent
of an electronic signature may authenticate such a signature.
Section 1633.9 provides, in pertinent part: “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

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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.” (Civ. Code,
§ 1633.9, subd. (a), italics added.)
As previously noted, “[w]here, as here, the judgment is
against the party who has the burden of proof, it is almost
impossible for him to prevail on appeal by arguing the evidence
compels a judgment in his favor. That is because unless the trial
court makes specific findings of fact in favor of the losing
plaintiff,[6 ] we presume the trial court found the plaintiff's
evidence lacks sufficient weight and credibility to carry the
burden of proof. [Citations.] We have no power on appeal to
judge the credibility of witnesses or to reweigh the evidence.”
(Bookout v. State of California ex rel. Dept. of Transportation
(2010) 186 Cal.App.4th 1478, 1486 .) Under these principles,
“ ‘ “the question becomes whether [AGS’s] evidence was
(1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.” ’ [Citations.]” (Fabian,
supra, 42 Cal.App.5th at p. 1067.)

6 Although Code of Civil Procedure section 1291 provides
either party could have requested a statement of decision
regarding the motion to compel arbitration, neither a statement
of decision nor a request for a statement appears in the record.
“Because a statement of decision was available but not requested,
we apply the doctrine of implied findings and presume the court
made all factual findings necessary to support its order—to the
extent substantial evidence supports such findings.” (Ruiz v.
Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842
(Ruiz).)

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 The record does not support that as a matter of law, the
evidence compels a finding there was an arbitration agreement
between AGS and Yerena. The trial court noted the evidence in
derogation of such a finding including: (1) “the absence of any
showing of security measures ensuring that . . . an account can be
created on-site only by the employee”; (2) the “appear[ance] that
any human resources employee could have created the online
account on Plaintiff’s behalf”; (3) “the absence of evidence that
Plaintiff set up the system on June 8, 2018 or accessed it
thereafter”; (4) the lack of a “percipient witness attesting to
Plaintiff’s use of the on-site computers to set up an account in
June 2018”; (5) “the list of other employees who ‘modified’ or
uploaded documents”; (6) “the inference from Defendant’s own
evidence . . . that one of its human resources employees set up the
account to populate the new system with previously filed
employment documents, like Plaintiff’s 2010 employment
application”; and (7) “the fact that Plaintiff’s name was
incorrectly input into the employment account.”
Our own review of the evidence discloses additional
inconsistencies in AGS’s evidence not addressed by the trial
court. For example, exhibit E to Youssef’s reply declaration
states that the agreement to arbitrate was sent to Yerena’s
account on June 8, 2018, yet the exhibit shows that the account
was not created until almost a month later, on July 4, 2018, a
national holiday. For the trial court to accept AGS’s version of
events, it would also have had to accept that AGS’s headquarters
were open and staffed by human resources personnel on a
national holiday, and that Yerena chose that day to visit AGS’s
headquarters to “create” the account into which documents had
been input a month previously. AGS did not produce anyone

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from its human relations department who saw Yerena come in on
July 4, 2018 (or any other day), to set up his employee account on
one of the lobby computers. Under the doctrine of implied
findings, we imply that the trial court found that any such
“onboarding” did not occur.
On appeal, AGS argues Yerena’s evidence was insufficient
to establish he did not sign the arbitration agreement. Labeling
Yerena’s arguments “speculative,” AGS contends “plaintiff
presented no evidence that anyone else besides plaintiff created
his own account, logged onto the system using his unique
credentials, and signed his name to the Arbitration Agreement or
any other documents.” We reject these contentions.
First, Yerena’s evidence was not “speculative.” Yerena
declared unambiguously that he never signed onto AGS’s system,
created an online account, or signed the arbitration agreement.
Second, it was AGS’s burden below to prove the existence of an
arbitration agreement. Thus, we cannot disturb the trial court’s
finding that AGS did not satisfy that burden unless we are able
to conclude from the record that AGS did so as a matter of law.
As explained above, there was evidence in the record, if believed
by the trial court, to support its finding. This ends our inquiry.
AGS urges us to follow Espejo v. Southern California
Permanente Medical Group (2016) 246 Cal.App.4th 1047 (Espejo).
There, the Court of Appeal reversed an order denying the
defendant’s motion to compel arbitration of an employment
dispute brought by one of its associate physicians. Espejo is
factually inapposite. Unlike here, Espejo admitted he (1) had
access to a computer and an e-mail account; and (2) received and
electronically signed an employment agreement, but did not
recall seeing or electronically signing the arbitration agreement.

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(Id. at p. 1054.) Second, defendant’s onboarding process was
demonstrably more secure than the one before us.7 Here, by
contrast, there was evidence that an employee’s “dashboard”
could be created and accessed by anyone using a computer
terminal in the lobby of AGS’s headquarters, and in fact, it
appeared that people other than Yerena had accessed Yerena’s
purported online account.
We believe that Ruiz and Fabian are more factually apt. In
Ruiz, the trial court denied a petition to compel arbitration on the
ground that the moving party “ ‘failed to establish that an
Arbitration Agreement in fact exists . . . .’ ” (Ruiz, supra,
232 Cal.App.4th at p. 841.) The appellate court affirmed

7 Our colleagues in Division 4 described the defendant’s
evidence of its security measures as follows: “[O]nce the ‘Area
Medical Director decides to make a physician an offer of
employment, [the director] completes the employment agreement,
and electronically signs the agreement, an email is generated to
the applicant’ with a link to the SCPMG Applicant Homepage.
Access to the applicant homepage ‘requires the use of a private
and unique username and password,’ both of which are provided
by phone ‘directly and orally to the applicant.’ After logging into
SCPMG’s online system with this username and password, ‘the
first thing Dr. Espejo would be required to do is re-set his
password to one of his own choosing. He cannot proceed to the
next page unless he re-sets his password.’ At that point,
according to Tellez [defendant’s declarant], Espejo would have to
‘opt to agree to complete the employment documents using an
electronic signature.’ Once he agreed, he would be directed to the
portion of the Applicant Homepage containing the four
hyperlinks to his employment agreement, the DRP, the R&R, and
a benefits handbook. ‘Dr. Espejo only had access to these
documents by logging in and using his unique user name and
password.’ ” (Espejo, supra, 246 Cal.App.4th at p. 1053.)

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explaining that defendant’s declarant (Main) “summarily
asserted in her initial declaration” that Ruiz was the one who
electronically signed the arbitration agreement but “did not
explain how she arrived at that conclusion.” (Id. at p. 843.)
Further, “Main never explained how Ruiz’s printed electronic
signature, or the date and time printed next to the signature,
came to be placed on the 2011 agreement. More specifically,
Main did not explain how she ascertained that the electronic
signature on the 2011 agreement was ‘the act of’ Ruiz. (Civ.
Code, § 1633.9, subd. (a).)” (Id. at pp. 843–844.) The court noted
Main’s reply declaration merely described defendant’s onboarding
system in general, but did not repair defendant’s evidentiary
failure to meet its burden of proof or show that the trial court
erred in refusing to compel arbitration. (Id. at p. 844.)
Here, the trial court similarly found that AGS’s evidence
did not establish Yerena electronically signed the arbitration
agreement or that AGS’s onboarding process made it impossible
for anyone else to have signed it when, in fact, there was evidence
that others had entered Yerena’s purported online account and
AGS gave inconsistent evidence as to Yerena’s purported
electronic execution of the arbitration agreement.
In Fabian, the trial court found there was no agreement to
arbitrate a dispute involving a home improvement contract. The
agreement in question purported to bear the electronic signature
and initials of the plaintiff and was accompanied by a 15-digit
DocuSign “Identity Verification Code.” The plaintiff denied ever
signing any documents either physically or electronically. The
trial court found defendant’s assertion that the plaintiff signed
the contract containing an arbitration agreement was
unsupported by facts as to “who presented Fabian with a physical

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or electronic copy of the Contract, the specific location where the
Contract was signed, the time when the Contract was signed, or
how Anderson [defendant’s declarant] ascertained that Fabian
was present when the Contract was signed. Nor did Anderson
make any reference to DocuSign or the process used to obtain and
verify Fabian’s ‘docusigned’ electronic initials and signature.”
(Fabian, supra, 42 Cal.App.5th at pp. 1069–1070.) The appellate
court concluded that absent this detail, defendant’s evidence
amounted to “little more than a bare statement that [the
plaintiff] ‘entered into’ the contract without offering any facts to
support that assertion.” (Id. at p. 1070.) Arguably, here, AGS
arguably offered more general evidence of AGS’s onboarding
process than did the defendant in Fabian, but there was also
evidence to support, among other inconsistencies with this
general evidence, that Yerena did not have an e-mail account and
that others had made entries in Yerena’s purported onboarded
account in AGS’s system. As set forth above in our Discussion,
AGS’s evidence did not support a conclusion that as a matter of
law, the trial court erred in finding AGS had not met its burden
to prove the existence of an arbitration agreement.

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 DISPOSITION
The order denying American Guard Service, Inc.’s motion
to compel arbitration is affirmed. Jose Luis Yerena shall recover
his costs on appeal.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

BENKE, J.*

* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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