Amber Schulte vs Bruce Savett et al
Amber Schulte vs Bruce Savett et al
Case Number
25CV01270
Case Type
Hearing Date / Time
Mon, 08/25/2025 - 10:00
Nature of Proceedings
CMC; (7) Motions to Compel
Tentative Ruling
Amber Schulte v. Bruce Savett, et al.
Case No. 25CV01270
Hearing Date: August 25, 2025
HEARING: (1) Defendants’ Motion to Compel Arbitration
(2) Plaintiff’s Motion to Compel Further Responses from Defendant Savett to Form Interrogatories—Employment
(3) Plaintiff’s Motion to Compel Further Responses from Defendant Granite Capital Group to Form Interrogatories—Employment
(4) Plaintiff’s Motion to Compel Further Responses from Defendants to Requests for Production of Documents
(5) Plaintiff’s Motion to Compel Further Responses from Defendant Granite Capital Group to Special Interrogatories
(6) Plaintiff’s Motion to Compel Further Responses from Defendant Savett to Form Interrogatories—General
(7) Plaintiff’s Motion to Compel Further Responses from Defendant Savett to Requests for Admission
ATTORNEYS: For Plaintiff Amber Schulte: R. Chris Kroes, Lini Elias Wheelock, John R. Weninger, McCarthy & Kroes
For Defendants Bruce Savett and Granite Capital Group: Vickie V. Grasu, Kyle M. Aronson, O’Hagan Meyer
TENTATIVE RULING:
(2) On or before September 5, 2025, the parties shall further meet and confer, in person, by telephone, or by video conference, regarding the remaining discovery motions. On or before September 12, 2025, the parties shall file a joint report setting forth the status of the discovery disputes (or file and serve individual reports if a joint report is not feasible). The hearing on the remaining six motions to compel is continued to September 19, 2025.
Background:
On February 27, 2025, plaintiff Amber Schulte (Schulte or plaintiff) filed her original complaint in this action alleging eight causes of action: (1) discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.); (2) retaliation in violation of FEHA; (3) failure to prevent discrimination and retaliation in violation of FEHA; (4) wrongful termination in violation of public policy; (5) workplace harassment in violation of FEHA; (6) defamation; (7) breach of implied in fact contract; and (8) breach of covenant of good faith and fair dealing. The first through fifth causes of action are asserted against defendants Bruce Savett and Granite Capital Group (Granite); the sixth cause of action is asserted against Savett only; the seventh and eighth causes of action are asserted against Granite only.
On April 4, 2025, as stated in the declaration of attorney Chris Kroes, plaintiff served on each of the defendants a first set of requests for production of documents (RFP).
On April 9, 2025, as stated in the Kroes declarations, plaintiff served on each of defendants first sets of form interrogatories (Employment Law) (FI-EL). Plaintiff also served first sets of form interrogatories (General) (FI) and special interrogatories (SI) on Granite, and a first set of requests for admission (RFA) on Savett.
On April 21, 2025, defendants filed their demurrer to the complaint and a petition to compel arbitration.
On April 25, 2025, plaintiff filed opposition to the petition to compel arbitration. Plaintiff, in the opposition and supporting papers, objects to the arbitration agreement proffered by defendants as inadmissible, and argues that the arbitration agreement is unconscionable.
On May 6, 2025, as stated in the respective Kroes declarations, defendants served, by electronic service, responses to the RFP. The responses consisted entirely of objections.
On May 13, 2025, as stated in the respective Kroes declarations, defendants served, by electronic service, responses to the FI-EL, SI, FI, and RFA. The responses consisted entirely of objections.
On May 23, 2025, plaintiff filed two motions to compel further responses, one with respect to each of the FI-EL served on each defendant.
On May 30, 2025, plaintiff filed an additional three discovery motions: (i) a motion to compel further responses to the RFP from defendants; (ii) a motion to compel further responses to the SI from Granite; and (iii) a motion to compel further responses to the FI from Savett.
On June 3, 2025, plaintiff filed a motion to compel further responses to the RFA from Savett.
On July 14, 2025, plaintiff filed a first amended complaint (FAC). The FAC asserts the same eight causes of action as the original complaint.
On July 15, 2025, defendants filed opposition to the motions to compel.
On July 17, 2025, plaintiff filed an omnibus reply to defendants’ opposition to the motions to compel.
On July 21, 2025, defendants filed a reply to plaintiff’s opposition to the petition to compel arbitration, a reply to plaintiff’s evidentiary objections, and the declaration of Lisa Bauer, the Director of Compliance Services, providing information regarding the arbitration agreement included with defendants’ petition.
On July 22, 2025, plaintiffs filed a request to strike the declaration of Bauer and other matter filed in reply to the petition to compel arbitration. Later on July 22, defendants filed a response to the request to strike.
On July 28, 2025, the court addressed the pending motions. The court ordered the demurrer to the original complaint off calendar as mooted by the filing of the FAC. The court ordered further briefing as to the motion to compel arbitration. The court otherwise continued the hearing on all then-pending motions to this hearing date.
Analysis:
(1) Petition to Compel Arbitration
“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc., § 1281.2, subds. (a), (b).)
“[I]t is a cardinal principle that arbitration under the [Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.)] ‘is a matter of consent, not coercion.’ [Citation.] Thus, ‘ “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” ’ [Citations.] In determining the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).)
“In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.’ [Citations.] Generally, an arbitration agreement must be memorialized in writing. [Citation.] A party’s acceptance of an agreement to arbitrate may be express, as where a party signs the agreement. A signed agreement is not necessary, however, and a party’s acceptance may be implied in fact [citation] or be effectuated by delegated consent [citation]. An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” (Pinnacle, supra, 55 Cal.4th at p. 236.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Ibid.)
The arbitration agreement (Agreement) alleged by defendants is set forth as exhibit A to the declaration of attorney Vickie V. Grasu and as exhibit A to the declaration of Bauer. (Note: The use of the defined term, “Agreement,” is for identification purposes only.)
(A) Evidentiary Matters
Much of Schulte’s opposition is based upon Schulte’s evidentiary objections to the Agreement. As originally presented, the only evidence as to the Agreement was from Grasu. Grasu’s declaration consists of three paragraphs. In paragraph 1, Grasu states that she is counsel of record for defendants and has personal knowledge of the facts of the declaration. The remaining two paragraphs state:
“Defendants employed Amber Schulte (‘Plaintiff’) as an executive assistant from January 2, 2014 until her termination on October 25, 2024. As part of her employment, Plaintiff executed a Mutual Agreement to Arbitrate on September 16, 2024. A true and correct copy of the Mutual Agreement to Arbitrate is attached hereto as Exhibit A.” (Grasu decl., ¶ 2, bolding omitted.)
“On February 27, 2025, Plaintiff filed her Complaint in the above-entitled court asserting several claims under California law—all of which fall squarely within the Agreement. On April 10, 2025, Defendants’ counsel contacted Plaintiff’s counsel to see if Plaintiff would stipulate to arbitration. Plaintiff would not, necessitating this motion.” (Grasu decl., ¶ 3.)
Plaintiff objects to the testimony in the paragraph 2 as hearsay and made without personal knowledge. Boilerplate stating that the declarant has personal knowledge is insufficient to establish personal knowledge. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.) Grasu provides no evidence as to why she would have personal knowledge of either Schulte’s employment or Schulte’s execution of the Agreement. Plaintiff’s objections 2 and 3 to paragraph 2 of the Grasu declaration will be sustained.
In reply, and in response to plaintiff’s objections, defendants filed the declaration of Lisa Bauer, the “Director of Compliance Services for G&A Partners” “since November 1, 2021.” (Bauer decl., ¶ 1.) In response to the filing of this declaration in reply, plaintiff requested that the court strike this declaration as improper reply evidence to which defendants filed a still-later response. On July 28, 2025, the court stated that it would consider the Bauer declaration notwithstanding its late filing, effectively denying the request to strike, and so continued the hearing to permit the filing of supplemental responses first by plaintiff and then by defendant. (Note: The Bauer declaration is not consecutively paginated as required by California Rules of Court, rule 2.109; page numbers cited by the court refer to the pdf page number of the declaration.)
In her declaration, Bauer states:
“In my position as Director of Compliance Services, I have access to the business-related data and information for G&A stored in the ordinary course of business. I am also familiar with the electronic review and signature process for G&A agreements, including the subject arbitration agreement (‘Arbitration Agreement’). A true and correct copy of the Arbitration Agreement signed by Plaintiff on September 16, 2024 is attached hereto as Exhibit A. In the ordinary course of business, I also have access to information about G&A’s operations. My position at G&A also requires me to have direct knowledge of G&A’s online onboarding audit system. I have personal knowledge of the facts stated herein and, if called as a witness, would be able to testify to them.” (Bauer decl., ¶ 2.)
“G&A is a Professional Employer Organization (‘PEO’) based in Houston, Texas.
Some of the services that G&A provides include outsourced human resources for small and medium-sized businesses.” (Bauer decl., ¶ 3.)
“Defendants contracted with G&A for these services, and others, in or around August 30, 2024.” (Bauer decl., ¶ 4.)
“Plaintiff provided G&A her email address, so that G&A could send her directions regarding registering for G&A’s online portal.” (Bauer decl., ¶ 5.)
“Once an employee registers with G&A’s portal, the employee is prompted to review various documents, including, but not limited to, the Arbitration Agreement. The employee is free to download the documents before and after signing, to leave the portal at any time before and after signing any or all documents, and to speak with whomever they wish regarding any of the documents, including the Arbitration Agreement.” (Bauer decl., ¶ 6.)
“Every agreement that an employee signs on G&A’s portal can only be executed by the employee following an input of the employee’s unique credentials. To execute a document: (1) the employee signs on to G&A’s portal using their unique user ID; (2) the employee is prompted to review several agreements and is able to sign these agreements electronically following their review; (3) once the employee signs the document(s) electronically, it is date- and time-stamped and a copy of the executed agreement is emailed to the employee’s email address. The employee’s password is never shared with anyone other than the employee, including individuals at G&A or the client company. If an employee forgets their password, they are prompted electronically to reset their password.” (Bauer decl., ¶ 7.)
“I verified that on September 16, 2024, Plaintiff logged into G&A’s portal using her unique login information. I further verified that on September 16, 2024, Plaintiff electronically executed the Arbitration Agreement using her unique login ID. Plaintiff’s IP address was recorded as part of her electronic signature.” (Bauer decl., ¶ 8.)
Plaintiff again argues that the Agreement is not authenticated and therefore inadmissible.
“[A]ny writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence. [Citations.] ‘Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.’ [Citations.]” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 843 (Ruiz).) “For example, a writing can be authenticated by circumstantial evidence and by its contents.” (People v. Skiles (2011) 51 Cal.4th 1178, 1187.)
“Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: ‘(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.’ (Civ. Code, § 1633.9, subd. (a), italics added.)” (Ruiz, supra, 232 Cal.App.4th at p. 843.)
The case of Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062 (Fabian) is instructive. In Fabian, the plaintiff filed a complaint alleging that the defendant improperly installed solar panels on her home. (Id. at p. 1064.) The plaintiff alleged in her complaint that the defendant signed her name on a financial agreement, which the defendant claimed not to have signed. (Ibid.) The defendant filed a petition to compel arbitration based on an arbitration provision in a contract that the defendant claimed had been electronically signed by the plaintiff. (Ibid.) The version of the contract proffered by the defendant included a printed signature and words to the effect that the document had been electronically signed. (Id. at p. 1065.) The plaintiff provided a declaration stating that she had only discussed financing telephonically and that the electronic signature was placed without her consent. (Ibid.) In reply, the defendant provided a declaration stating that the plaintiff had signed the contract based on records the defendant maintained in the ordinary course of business. (Ibid.) The trial court denied the petition to compel arbitration, finding that the defendant had failed to establish that the plaintiff electronically signed the contract. (Ibid.)
On appeal in Fabian, the court noted that the defendant “met its initial burden to show an agreement to arbitrate by attaching a copy of the Contract to its petition, which purportedly bears [the plaintiff’s] electronic initials and signature.” (Fabian, supra, 42 Cal.App.5th at p. 1067.) Because the plaintiff declared that she did not sign the contract, the defendant then had “ ‘the burden of proving by a preponderance of the evidence that the electronic signature was authentic.’ [Citation.]” (Ibid.)
“ ‘[T]he 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. [Citation.] [In Fabian], the trial court found that [the defendant] did not carry its burden to establish the authenticity of [the plaintiff’s] electronic signature on the Contract. As we explain, [the defendant’s] evidence was not ‘ “ ‘of such a character and weight as to leave no room for a judicial determination’ ” ’ that [the defendant] failed to establish that [the plaintiff] electronically signed the Contract. [Citation.]” (Fabian, supra, 42 Cal.App.5th at pp. 1067–1068.)
The Fabian court addressed authentication by DocuSign as asserted by the defendant in that case:
“Citing to Newton v. Am. Debt Servs (N.D. Cal. 2012) 854 F.Supp.2d 712 (Newton), [the defendant] argues that DocuSign renders [plaintiff’s] electronic initials and signature ‘legally binding.’ Newton explained DocuSign is a company used to electronically sign documents in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN), 15 U.S.C. § 7001 et seq. [Citation.] Under ESIGN, electronic records and signatures in compliance with ESIGN are legally binding. [Citation.] DocuSign permits a company to send documents to a customer for their signature. [Citation.] The customer opens the document for review containing areas marked for the signatory to execute. [Citation.] The signer creates a signature and must click a button confirming their signature once they have completed all form fields and signed in all required places. [Citation.]
“[The defendant’s reliance on Newton is misplaced because, unlike [in Fabian], the declarant in that case proved that the ‘docusigned’ electronic signature was the plaintiff’s by explaining the process used to verify the signature. [Citation.] There, the defendant submitted a declaration stating that it sent a contract to the plaintiff using DocuSign, and that the plaintiff signed the Client Signature portion of the contract. [Citation.] Once signed, the signature was assigned an identifying code, such as the one that appeared above the plaintiff’s signature on the subject contract. [Citation.]
“[In Fabian, the defendant] did not provide any evidence from or about DocuSign in its petition, reply, or supplemental declaration. Indeed, the word ‘DocuSign’ does not appear in any of [the defendant’s] moving papers. [The defendant] offered no evidence about the process used to verify [the plaintiff’s] electronic signature via DocuSign, including who sent [the plaintiff] the Contract, how the Contract was sent to her, how [the plaintiff’s] electronic signature was placed on the Contract, who received the signed the Contract, how the signed Contract was returned to [the defendant], and how [the plaintiff’s] identification was verified as the person who actually signed the Contract.” (Fabian, supra, 42 Cal.App.5th at pp. 1068–1069.)
The Fabian court next addressed the follow-up declaration proffered by the defendant. The Fabian court noted that the declaration did not state that [the plaintiff] actually signed the contract, and did not explain details of how the contract was signed. (Fabian, supra, 42 Cal.App.5th at pp. 1069-1070.) The declaration also did not suggest how the electronic signature could only have been placed on the contract by the plaintiff. (Id. at p. 1070.)
The Fabian court concluded by observing that to prevail on appeal, the defendant “was required to establish that its evidence compelled a finding in its favor as a matter of law.” (Fabian, supra, 42 Cal.App.5th at p. 1070.) The evidence of the contract and the declaration did not compel a finding in the defendant’s favor as a matter of law. (Ibid.)
The admissibility issue here is not whether the evidence presented by defendants establishes that plaintiff signed the Agreement as a matter of law, as in Fabian, or even whether the evidence presented by defendants is ultimately persuasive on the merits of issue (as discussed below). Instead, the issue is whether the evidence presented by defendants, if credited, is sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is. As noted above, this preliminary fact burden (see Evid. Code, § 403, subd. (a)) is not great.
As quoted above, the evidence presented by defendants is the Agreement, including its electronic signature. Bauer provides evidence as to the process by which an employee signs an electronic document and how Bauer would have personal knowledge of that process. If Bauer’s declaration testimony is credited, that testimony, combined with the Agreement itself, would be sufficient evidence to sustain a finding that Schulte signed the Agreement.
“Although writings must be authenticated before they are received into evidence or before secondary evidence of their contents may be received [citation], a document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be [citation]. As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.” (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.)
Consequently, defendants’ evidence is sufficient to authenticate the Agreement for purposes of the Agreement’s admissibility. The weight of that evidence is discussed below.
The parties also discuss the hearsay rule and the business records exception to the hearsay rule (Evid. Code, § 1271). As to the Agreement, the hearsay rule, and so also the business records exception, is not applicable.
“Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as ‘evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.’ A ‘statement’ is ‘oral or written verbal expression’ or the ‘nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.’ (Evid. Code, § 225.) Senate committee comments to Evidence Code section 1200 explain that a statement ‘offered for some purpose other than to prove the fact stated therein is not hearsay.’ [Citations.] Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)” (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).)
“Documents like letters, reports, and memoranda are often hearsay because they are prepared by a person outside the courtroom and are usually offered to prove the truth of the information they contain. Documents may also contain multiple levels of hearsay. An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of others, related by the report writer, are a second level of hearsay. Multiple hearsay may not be admitted unless there is an exception for each level. [Citation.] For example, in the case of the emergency room document, the report itself may be a business record (Evid. Code, § 1270 et seq.), while the patient’s statement may qualify as a statement of the patient’s existing mental or physical state (Evid. Code, § 1250, subd. (a)).” (Sanchez, supra, 63 Cal.4th at pp. 674–675.)
The difficulty in applying the hearsay rule to the Agreement is in identifying what is the “out-of-court statement offered for the truth of its content.” As a contract, the Agreement is not hearsay because it is offered as operative facts:
“ ‘ “[A] well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said ... and not ... whether these things were true or false, and in these cases the words ... are admissible not as hearsay, but as original evidence.” ’ [Citation.] ‘Operative facts draw their significance from having been said or written regardless of whether they are true, and such facts lie outside the hearsay rule.’ [Citation.] Accordingly, ‘documents containing operative facts, such as the words forming an agreement, are not hearsay.’ [Citations.]” (J&A Mash & Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 18–19.)
Taken one step further, to the extent that the electronic signature may in some sense be viewed as a statement offered for its truth, i.e., that it is the signature of the plaintiff, the out-of-court statement is by the plaintiff and the party-opponent admission exception would apply. (See Evid. Code, § 1220.) The preliminary fact to admissibility under this exception is the same issue of authenticity discussed above, namely, whether the statement was actually made by the plaintiff. (See Evid. Code, § 403, subd. (a)(4).) For the same reasons, defendants have provided sufficient evidence to meet that preliminary burden so as to make the Agreement admissible as evidence.
Plaintiff’s objections to the admissibility of the Agreement are overruled. The court’s rulings on the admissibility of such evidence, however, does not determine how the court weighs the credibility of such evidence.
(B) Agreement to Arbitrate
The evidence is conflicting as to whether there exists an agreement to arbitrate. Defendants’ evidence is the Agreement, taken together with the evidence of the Bauer declaration, discussed above.
In opposition to the motion, Schulte provides her own declaration. In particular, Schulte states:
“I have reviewed the Petition to Compel Arbitration, and the accompanying exhibits, including the purported Arbitration Agreement, attached as Exhibit A to the Declaration of Vickie Grasu, attorney for Bruce Savett and Granite Capital. I do not recognize the Arbitration Agreement, nor do I recall having ever seen it, or ever having signed it.” (Schulte decl., ¶ 2.)
“The signature on the final page of the purported Arbitration Agreement is not my signature, nor does it even remotely resemble my signature. To the best of my knowledge, I have never signed my name in the manner shown on Arbitration Agreement. My signature is very different, and has remained essentially the same for the last twenty years, and it is affixed to the bottom of this declaration.” (Schulte decl., ¶ 3.) Schulte attaches exemplars of her signature to the declaration. (Id. & exhibit 1.)
“I never discussed terms of any proposed Arbitration Agreement with my employer, Bruce Savett and Granite Capital Group.” (Schulte decl., ¶ 4.)
“I never agreed to any terms of any proposed Arbitration Agreement with my employer, Bruce Savett and Granite Capital Group.” (Schulte decl., ¶ 5.)
“Had I known any document presented for my signature was an agreement requiring mandatory arbitration of any claims arising out of my employment or the cessation of my employment, I would never have agreed to sign it.” (Schulte decl., ¶ 6.)
“During the time I worked at Granite Capital, I sat in a common ‘bull-pen’ area where there were approximately ten (10) computers, with open access to anyone who worked there. I did not have a ‘dedicated’ personal computer there.” (Schulte decl., ¶ 9.)
“I have gone through all of my emails for 2024 searching for any email requests for me to sign a binding arbitration agreement. I searched both the inbox and the sent items. I found no emails referencing same.” (Schulte decl., ¶ 10.)
In addition to the Schulte declaration, in supplemental reply, plaintiff presents the declaration of Michael Ullemeyer, an expert in computer forensics, software and information technology. (Ullemeyer decl., ¶ 1.) Ullemeyer provides his expert opinion that there was and is no digital audit trail and it is impossible for anyone to accurately claim that Schulte digitally signed the Arbitration Agreement. (Ullemeyer decl., ¶ 3.) Among other things, Ullemeyer states: “The Bauer Declaration provides no basis or explanation of the efficacy of the security protocols that would ensure only authorized users have access to the networks accessed in her Declaration. This is important because without specific, verifiable details about the security protocols, there is no way to assess whether the login credentials, IP address, and electronic signature could have been compromised, used by someone other than the Plaintiff, or otherwise manipulated issues that go directly to the authenticity and reliability of the alleged electronic execution of the Arbitration Agreement.” (Ullemeyer decl., ¶ 8.)
The evidence presented by both parties does not strongly support either position. Defendants provide the Agreement itself, supported by general information regarding how the Agreement would be electronically signed by Schulte and not likely signed by anyone else. This evidence is insufficient to exclude the possibility that the electronic document was signed by someone other than Schulte. At the same time, Schulte’s denials are not completely definitive. Schulte states that she does not recall seeing the Agreement or having signed it, and Schulte would not have agreed to sign it. Schulte also states that she reviewed her email for 2024 emails and did not find an email relating to requests regarding arbitration. This evidence, and the forensic compute evidence, does not exclude the possibility that Schulte signed the electronic document but does not now recall that signing.
The timing of events is significant here. There is no dispute that Schulte commenced her employment with Granite in January 2014. (Schulte decl., ¶ 21; Motion, at p. 3.) The Agreement is not dated except by its signature, which has the date and time “2024-09-16 15:17 UTC” at the top and “2024-09-16 14:56 UTC” at the bottom, more than ten years after Schulte commenced her employment. (Bauer decl., exhibit A, p. 9.) At the same time, Schulte’s employment with Granite terminated on October 28, 2024, six weeks or so after the Agreement’s signature date. (Schulte decl., ¶ 21; Motion, at p. 3.)
The electronic signature attached to the Agreement consists of a squiggle that is notably different from Schulte’s regular signature. (Compare Bauer decl., exhibit A, p. 9 with Schulte decl., exhibit 1.) This fact by itself is not very significant because Schulte’s exemplars are all paper signatures rather than electronic signatures. One would expect a signature made by use of a computer mouse or a finger or a stylus would be different. Nevertheless, the notably different electronic signature demonstrates that it could have been made by anyone.
Additionally, as Bauer points out, an IP Address was included as part of the electronic signature. Bauer does not attempt to connect this IP address with Schulte’s computer. Schulte provides evidence that she did not have a unique computer. The inclusion of the IP address thus adds nothing to identifying Schulte as the one signing the document. This point is reinforced by the expert testimony of Ullemeyer that the IP address recorded is of little probative value, at least without much more information than is provided by defendants.
Bauer declares that defendants contracted with G&A for G&A’s services around August 30, 2024. (Bauer decl., ¶ 4.) Bauer further declares that Schulte provided G&A her email so that Schulte could send her directions regarding registering for G&A’s online portal. (Bauer decl., ¶ 5.) According to Bauer, a document is signed through this portal, a copy of the document is emailed to the employee’s email address. (Bauer decl., ¶ 7.) According to Bauer, the employee’s password is never shared with anyone other than the employee. (Ibid.) Bauer states that she verified the activity on September 16, 2024. (Bauer decl., ¶ 8.)
As discussed above, the court considers Bauer’s testimony sufficient for purposes of admissibility of the Agreement as evidence. However, Bauer’s testimony is not very persuasive on the merits for a number of reasons. First, plaintiff’s arguments as to the inadmissibility of Bauer’s testimony on the basis of personal knowledge are useful in pointing out the disconnect between Bauer and the act of signing. Bauer provides only a generic description of the use of the G&A portal but provides no specific information regarding Schulte that does not come from that system itself. As Ullemeyer points out, the entirety of the security for access to the G&A portal depends upon access to the email address to which plaintiff’s credentials are sent. (E.g., Ullemeyer decl., ¶ 32.) No information is provided that identifies how this process would make it likely that Schulte was the person signing the Agreement through the G&A portal. Indeed, there is no direct evidence presented that the email to which credentials were sent is actually the email of Schulte.
Also completely unexplained by defendants are the circumstances under which the Agreement was supposed to be signed. Schulte had been employed for over a decade by the date of the signature of the Agreement, but only a couple of weeks after G&A were hired by defendants. Necessarily, the Agreement was not a document included with other documents in the process of Schulte’s onboarding. It is not stated when, why, or how Schulte was supposed to have signed the Agreement. There is no information whether this was as single document to be signed or was part of a larger package of documents to be signed. There is nothing in Bauer’s testimony to indicate that Bauer has any personal knowledge of the transaction involving Schulte.
Schulte states that she does not remember the Agreement or signing it; Schulte also states that she would not have signed or agreed to the Agreement. This testimony, by itself, ordinarily would not be very persuasive—not remembering seeing or signing a document is not the same as denying signing it outright. (Schulte does, however state directly that she has never signed her name in the manner shown on the Agreement.) However, in the context of other events, Schulte’s testimony makes defendants’ evidence substantially less credible. Unlike the signing of an arbitration agreement in the onboarding process, this Agreement was supposed to have been signed by Schulte more than a decade after her hiring and approximately six weeks before her employment was terminated. The short time between this signing date and her termination date should have been memorable; the fact that it was not memorable to Schulte makes it more credible that she did not sign or agree to the Agreement. Additionally, the short time between this signing date and her termination date also makes more credible the possibility that the Agreement was signed by someone else in anticipation of Schulte’s termination. The short time between this signing date and her termination also makes more credible Schulte’s assertion that if she had been presented the Agreement, she would not have signed it.
Putting all of the evidence and arguments together, the court is left with a number of conflicting possibilities without much evidence that is persuasive one way or the other. Under these circumstances, the court concludes that defendants, as the parties with the burden of proof to establish the existence of an arbitration agreement, have failed to meet that burden. The motion to compel arbitration will therefore be denied.
(Note: While the court has considered the Ullemeyer declaration as discussed herein, the court notes that there is a considerable amount of extraneous legal argumentation in that declaration. The court reaches the same conclusion that defendants have failed to meet their burden even without considering any aspect of the Ullemeyer declaration.)
(2) Motions to Compel
The parties’ approach to the discovery motions also before the court in this hearing is predominantly based upon their respective positions as to the motion to compel arbitration. Insofar as the court has resolved the motion to compel arbitration, the parties will be required further to meet and confer as to the discovery at issue to attempt to resolve or narrow the disputes at issue in these motions.