JENNIFER BONG, et al. v. PRIMECARE MEDICAL NETWORK, INC., et al

1 The complaint includes claims for (1-2) retaliation under Labor Code sections 98.6 and 1102.5, (3) retaliation under FEHA, (4) disability discrimination under FEHA, (5) failure to accommodate under FEHA, (6) failure to engage in the interactive process under FEHA, (7) CFRA/FMLA interference, (8) CFRA/FMLA retaliation, (9) unlawful deduction of wages, (10) failure to pay wages, (11) violation of Labor Code section 224, (12) waiting time penalties, (13) inaccurate wage statements, (14) unfair business practices, and (15) conversion.

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agreements, Bong’s employment application, and the employment offer letter to Bong. The motion is also supported by a request for judicial notice of minute orders in unrelated matters adjudicating motions to compel arbitration in cases against Defendants. The motion is opposed on the grounds that Defendants’ evidence is inconsistent as the moving documents show that the arbitration agreements were purportedly signed before Defendants began working and before they (Plaintiffs) were given access to Defendants onboarding platform.

Plaintiffs also point out that all the other onboarding documents were signed on the first day of work, not beforehand. Plaintiffs additionally indicate that no arbitration agreements were produced in a prior sexual harassment lawsuit (which serves as the basis for the retaliation claims in the current case). Plaintiffs otherwise dispute signing the agreement and argue the evidence submitted by Defendants lack foundation. The opposition is supported by declarations from Plaintiffs and a declaration from attorney Richard Jorgensen.

Plaintiffs also oppose Defendants’ request for judicial notice and submit evidentiary objections. Defendants have replied and submitted another declaration from attorney Naomi Pontious, which is used to show that the offer letter and arbitration agreements were previously served in connection with the prior lawsuit. Defendants also submit evidentiary objections to the Jorgensen declaration. Plaintiffs, in turn, object to the new evidence submitted with the reply.

Evidentiary objections Defendants request for judicial notice of the minute orders in the unrelated matters is denied because trial court orders generally cannot serve as legal precedent. (See e.g. Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148; Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 922, p. 960; Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761; City of Bakersfield v. West Park Home Owners Assn. & Friends (2016) 4 Cal.App.5th 1199, 1210 [“Accordingly, we will neither rely upon, nor take judicial notice of, these orders”].)

The Court also sustains Plaintiffs’ objection to the trial court minute orders on the basis relevance. In addition, the Court overrules Plaintiffs’ objections to the Weedman declaration and Defendants’ objections to the Jorgensen declaration. It is generally improper to submit new evidence in connection with the reply, i.e., it is improper to submit evidence that should “ have addressed the substantive issues in the first instance,” but evidence with the reply is proper to “ fill[] gaps in the evidence created by the ... opposition.” (Jay v.

Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) In this case, the motion initially included evidence attempting to establish the existence of the arbitration agreements. The opposition suggested that the moving evidence was not credible since the agreement was not produced in connection with the prior lawsuit; the reply evidence simply responds to that attempt to create a purported “gap” in the evidence by showing the agreement was previously submitted. As a result, the Court finds that the reply evidence is proper and Plaintiffs’ objections are overruled.

DISCUSSION An Overview of the Law Related to Motions to Compel Arbitration Under Code of Civil Procedure section 1281.2, a party to an arbitration agreement may move to compel arbitration if another party to the agreement refuses to arbitrate, and the court shall compel arbitration if it determines that an agreement to arbitrate exists, unless, among other exceptions not applicable here, it determines that:

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(a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.

The moving party may also seek a stay of pending litigation either by itself or in conjunction with a petition to compel contract arbitration. A stay must be granted where a court has previously ordered arbitration of the dispute or an application for such an order has been made but not ruled upon. (Code Civ. Proc. § 1281.4.) California law favors the enforcement of valid arbitration agreements. Any doubts about arbitration will be resolved against the party asserting a defense to arbitration, whether the issue is construction of contract language, waiver, delay or any like defense to arbitrability. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 320.)

A party petitioning to compel arbitration under California law must prove by a preponderance of the evidence the existence of a valid arbitration agreement and that the controversy is covered by that agreement. The burden then shifts to the party opposing arbitration to prove by a preponderance of the evidence any grounds for denial of the petition. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) If the party opposing the petition raises a defense to enforcement, then he bears the burden of producing evidence and proving by preponderance of the evidence any fact necessary to the defense. (Rosenthal v.

Great Western Fin. Sec. Corp. (1996) 14 Cal.4th 394, 413-414.) The Federal Arbitration Act (FAA) also authorizes enforcement of arbitration clauses unless grounds exist in law or equity for the revocation of any contract. (9 U.S.C. § 2.) The enforcement language of the FAA is almost identical to Code of Civil Procedure section 1281. In situations governed by the FAA, conflicting state law is preempted in either state or federal courts. (Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 477 [“ The FAA contains no express pre-emptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration ...

But even when Congress has not completely displaced state regulation in an area, state law may nonetheless be pre-empted to the extent that it actually conflicts with federal law ...”].) To compel arbitration under the FAA, a finding must be made that an agreement exists for arbitration between the parties and the agreement covers the dispute. (AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 648-49.) The enforcement of an arbitration clause is a matter of ordinary state-law contract principles.

Arbitration agreements are on equal footing with other contracts and should be enforced according to their terms. (AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 648-49.) The phrase in the FAA, that arbitration agreements can be declared unenforceable on grounds of law or equity for revocation permits invalidating such an agreement on contract defenses of fraud, duress, or unconscionability. (Ibid.) State rules of procedure, including those governing petitions to compel arbitration, apply in state court proceedings except where such rules would defeat the purpose of the federal law. (Rosenthal v.

Great Western Fin. Securities Corp. (1996) 14 Cal.4th 349, 409-410.)

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Whether the FAA Applies in this Case The FAA applies to arbitration contracts involving interstate commerce. (9 U.S.C. § 2; Aviation Data, Inc. v. American Express Travel Related Services Company, Inc. (2007) 152 Cal.App.4th 1522, 1534.) “Involving commerce” is the equivalent of the term “affecting commerce,” which is a term of art that ordinarily signals the broadest permissible exercise of Congress’s commerce clause power. (Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56.) “Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggre gate the economic activity in question would represent “a general practice ... subject to federal control.” (Id. at 55-57.)

In the context of employment agreements, the United States Supreme Court has concluded that the FAA generally covers employment contracts, except as to those employees in transportation which are governed by other “more specific legislation.” (Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 107.) As a result, employment agreements with employers that engage in interstate commerce are generally subject to the FAA. Here, it is undisputed that the agreements relate to Plaintiffs’ employment.

The agreements also contain a choice of law provision indicating the FAA applies and choice of law provisions are generally enforceable. (Gramercy Investment Trust v. Lakemont Homes Nevada, Inc. (2011) 198 Cal.App.4th 903, 908.) The declaration from Weedman further indicates that UnitedHealth engages in commerce throughout the United States. (Weedman Decl. at ¶ 2.) Therefore, the Court finds that the FAA applies.

Whether there are Arbitration Agreements Covering the Parties and the Pending Claims The scope of the agreements The evidence in this case supports the proposition that the agreements, if executed and enforceable, would cover the pending claims. In particular, the agreements offered by Defendants indicate the parties agreed to arbitrate “all claims and controversies ... that employee may have against UnitedHealth Group or that UnitedHealth Group may have against employee, which arise out of or relate to employee’s employment, application for employment, and/or termination of employment.” (Weedman Decl., Ex.’s 3 and 5 at ¶ B.)

The agreements then include a nonexhaustive list of the covered claims, which includes claims for unfair competition; claims for wages or other compensation due; tort claims; claims for discrimination, harassment, or retaliation; and claims for violation of State and Federal law. (Ibid.) The claims in this case all arise from the employment relationships and therefore would be covered. The contracts further provide that the arbitration requirement applies to UnitedHealth Group Inc. and its subsidiaries and affiliates (Weedman Decl., Ex.’s 3 and 5 at ¶ A) and the evidence shows that PrimeCare Medical Network, Inc. is an affiliate of UnitedHealth Group, Inc. (Weedman Decl. at ¶ 6) and OptumCare is a division of the former. (Weeman Decl. at ¶ 16.)

Moreover, Plaintiffs conceded that Defendants were all subsidiaries or affiliates. (Weedman Decl., Ex.’s C [Plaintiffs concede “those entities fall within that umbrella”] and Ex. D.) Finally, Plaintiffs also do not raise the scope of the agreements in the opposition. However, Plaintiffs do dispute having signed the agreements and whether Defendants met their initial burden on that issue.

Whether Plaintiffs executed the agreements A plain reading of the arbitration statutes “indicate that as a preliminary matter the court is only required to make a finding of the agreement’s existence, not an evidentiary determination of its validity.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219

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[Further relying on former California Rules of Court, rule 371 (now rule 3.1330) in holding no authentication is required].) 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...in compliance with the requirements of section 1281.2 and California Rules of Court, rule 3.1330.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060.) “Properly 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.” (Ruiz v.

Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846, emphasis in original.) However, in Ruiz the court further held that where the plaintiff did not recall signing the agreement, the defendant had the burden of proving by a preponderance of the evidence the authenticity of the plaintiff’s electronic signature. (Ibid.) Nevertheless, there is a difference between an electronic signature, that is a preprinted electronic signature, as opposed to an electronic capture of the signatory’s electronic pen stroke.

As indicated in Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 757, review denied (Apr. 26, 2023), “[a]n individual cannot confirm or deny the authenticity of an electronic signature by viewing a computer printout of the person’s printed name followed by the words “(Electronic Signature).” In such a case, the individual’s inability to recall signing electronically may reasonably be regarded as evidence that the person did not do so. However, an individual is capable of recognizing his or her own personal signature.

If the individual does not deny that the handwritten personal signature is his or her own, that person’s failure to remember signing is of little or no significance.” The reasoning underlying Iyere is applicable here. It appears that the signature on the Tomlin declaration was electronically captured, as opposed to electronically generated, but Bong on the other hand merely electronically agreed to the contract. (Weedman Decl. at Ex.’s 3 and 5.) Thus, arguably Tomlin’s indication that she does not recall seeing or signing the agreement or that she does not believe that she signed it is not enough to overcome the motion.

Otherwise, “signatures can be authenticated by a variety of means including eyewitness testimony (Evid. Code, § 1413), lay opinion testimony by a person familiar with the writer’s handwriting (id., § 1416), comparison by the trier of fact (id., § 1417), and expert testimony (id., § 1418).” (Estate of Ben-Ali (2013) 216 Cal.App.4th 1026, 1037, as modified on denial of reh’g (June 24, 2013).) In the electronic signature context, “the burden of authenticating an electronic signature is not great.’ [Citations.]

The party seeking authentication may carry its burden ‘in any manner,’ including by presenting evidence of the contents of the contract in question and the circumstances surrounding the contract’s execution.” (Fabian v. Renovate America (2019) 42 Cal.App.5th 1062, 1067-68, quoting Ruiz v. Moss Bros., supra, 232 Cal.App.4th at p. 844.) Civil Code section 1633.9, subdivision (a), also provides that “[a]n 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.” The Court of Appeal in Espejo, supra, 246 Cal.App.4th at p. 1062, found the defendant employer had sufficiently authenticated an employee’s electronic signature when the defendant “detailed [its] security precautions regarding transmission and use of an applicant’s unique user name and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement . . . .”

The declarant averred: “‘Given this

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process for signing documents and protecting the privacy of the information with unique and private usernames and passwords, the electronic signature was made by [the plaintiff]’. . . at the date, time, and IP address listed on the documents.” (Id. at p. 1054 [discussing the Uniform Electronic Transactions Act].) In contrast, in Ruiz, supra, the defendant “adduced the declaration of its business manager ... who was “required to be familiar with the generation and maintenance” of employee personnel records. [The employee] summarily asserted that [Plaintiff] “electronically signed” the 2011 agreement “on or about September 21, 2011,” and that the same agreement was presented to “all persons who seek or seek to maintain employment” with [Defendant].” (Ruiz v.

Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 839.) The declaration did not explain how defendant verified that plaintiff or other employees electronically signed the agreement. On appeal, the reviewing court concluded the evidence presented was insufficient to support a finding that the plaintiff had electronically signed the agreement and the plaintiff averred he did not recall electronically signing the contract. In this case, the declaration from Weedman shows that she has personal knowledge of the onboarding software used, which required the creation of a unique password to access, complete, and submit job applications.

Weedman further indicates that she has access to the program and the underlying records, which show that Plaintiffs accessed and signed the arbitration agreements. (Weedman Decl. at ¶¶ 3, 7, 10-12, and 14-16; Ex.’s 3 and 5.) The evidence here is therefore similar to that in in Espejo, supra, 246 Cal.App.4th at p. 1062. In the opposition, Plaintiffs suggest that the arbitration agreements are fabricated because they were not produced in connection with the prior litigation, but the responsive evidence with the reply suggests the agreements were, in fact, previously produced. (5/27/26 Pontious Decl.)

Plaintiffs also claim that the timing of the events undermines Defendants’ claims because Tomlin’s other documents are signed on her actual start date of May 14, 2018, but the arbitration agreement was signed on May 1, 2018. Similarly, Bong signed the agreement on June 10, 2018, and her employment started on August 27, 2018. (Weedman Decl. at 6, 12, 13, 15-19; Ex.’s 3 and 5.) Plaintiffs further contend they were never given login credentials before being hired. (Plaintiffs’ Declarations at ¶¶ 6.)

However, Weedman declared that Plaintiffs created the password to access, complete, and submit an application at the time they applied for employment, i.e. before they started working and before they signed the arbitration agreements. (Weedman Decl. at 7 and 14); Ex.’s 1 and 4.) The offers of employment further indicate that the acknowledgement of the arbitration agreement must be received prior to the start date, which would explain why the agreements were (and were able to be) signed before the actual start dates. (Weedman Decl., Ex. 2.)

Therefore, the Court finds that Defendants have produced sufficient evidence to show that Plaintiffs executed the arbitration agreements.

RULING The Court rules as follows: (1) Denies Defendants’ request for judicial notice and sustain Plaintiffs’ corresponding objections to the unrelated trial court orders. (2) Overrules Defendants’ objections to the Jorgensen declaration. (3) Overrules Plaintiffs’ objections to the evidence submitted with the reply. (4) Overrule Plaintiffs’ objections to the Weedman declaration. (5) Grants the motion to compel arbitration and stays the proceedings.

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(6) Sets the case for an OSC re: Status of Arbitration on November 30, 2026 at 9:00 a.m (7) Orders Defendants, as the prevailing party to serve formal notice of the Court’s rulings.

Dated: June 3, 2026

____________________________ Judge Nicole Quintana Winter