Filed 1/15/21 Fisher v. Bird Rides CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MATT FISHER,

Plaintiff and Respondent,

v.

BIRD RIDES, INC., et al.,

Defendants and Appellants.

B302936

(Los Angeles County

Super. Ct. No. 19STCV03082)

APPEAL from an order of the Superior Court of Los 

Angeles County, Terry Green, Judge. Affirmed.

Seyfarth Shaw, Eric M. Steinert, Jeffrey A. Wortman, 

Meagan Sue O’Dell and Amanda Lynn Mazin, for Defendants and 

Appellants.

Shegerian & Associates, Carney R. Shegerian and Jill 

McDonell, for Plaintiff and Respondent.

_______________________
2

Both the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et 

seq.) and the California Arbitration Act (Code Civ. Proc., § 1280 

et seq.) favor enforcement of valid arbitration agreements (Moses 

H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24–

25; Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 

41 Cal.4th 19, 25–26), but “[t]he strong public policy in favor of 

arbitration does not extend to those who are not parties to an 

arbitration agreement, and a party cannot be compelled to 

arbitrate a dispute that he has not agreed to resolve by 

arbitration.” (Benasra v. Marciano (2001) 92 Cal.App.4th 

987, 990.) Here, the trial court found plaintiff Matt Fisher did 

not electronically sign an arbitration agreement, and it denied 

the motion to compel arbitration filed by Bird Rides, Inc., Claudia 

Hellstrom, and Marwan Metwally (collectively, Bird), as well as 

Bird’s subsequent motion for reconsideration. We affirm the 

order.

FACTUAL AND PROCEDURAL BACKGROUND

We present the evidence in the light most favorable to the 

judgment. (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 

635, 642, fn. 3.) Fisher applied for and accepted a position with 

Bird, an electronic scooter rental service, with a starting date of 

October 4, 2018. Fisher received an electronic link to an 

“onboarding” system, an electronic process in which new hires 

create accounts and complete electronic documentation related to 

their employment.

On October 3, 2018, Fisher completed onboarding 

documents including a general information form, a medical 

benefit acknowledgment form, an Internal Revenue Service W-4 

form, a worker’s compensation pamphlet and associated forms, 

an employment eligibility verification form, a nondisclosure 
3

agreement, a payment options form, an authorization for release 

of personal data, and a notice concerning sick leave. Fisher was 

surprised not to see an arbitration agreement among the 

documents.

Fisher began his new job on October 4, 2018. Over the next 

weeks, Fisher made numerous safety complaints to Bird. On 

October 30, 2018, in response to one complaint, a Bird employee 

referred Fisher to a “Safety Acknowledgment” form she said he 

had signed during the onboarding process. Fisher had not seen 

or signed that document during onboarding. He logged back onto 

his electronic account to look for the safety acknowledgment and 

saw it had been added to his account. Fisher did not see an 

arbitration agreement.

Bird terminated Fisher’s employment on December 3, 2018. 

The following day, Fisher logged into his account looking for his 

time records. Only a few documents were present in his account, 

and Fisher reviewed all of them. There was no arbitration 

agreement. Fisher checked his account two or three more times 

after this date and before January 8, 2019; at no time did he find 

an arbitration agreement in his account.

Bird requested his personnel file on January 8, 2019. Bird 

directed him to log into his account for document access. Fisher 

asked for his actual file, including documentation related to his 

termination, his engagement agreement, and the complaints he 

had made, none of which was available through his online 

account. Bird again referred Fisher to his electronic account, and 

when Fisher logged in, he found an arbitration agreement had 

been added to his account. The agreement showed Fisher’s name 

electronically written on it as if he had signed it, but he had 

never seen it before.
4

On January 8, 2019, Fisher sent an electronic mail message 

to Bird stating that onboarding documents had been added after 

the fact to his online account. Fisher asked for time-stamped 

proof he had completed the documents. Bird never responded. 

Instead, later that day, Fisher discovered he could not log into his 

account. He was locked out of his account from that date 

forward.

Fisher sued Bird, alleging a variety of employment-related 

claims and negligence.

I. Motion to Compel Arbitration

Bird moved to compel arbitration. Bird submitted evidence 

about the onboarding process through the declarations of two 

individuals, Cristina David and Mikayla Bruton. David 

described how the onboarding system generally operated. 

Individuals first create an employee account with a personallyselected password. They then view and complete two sets of 

forms; when they complete the first set they are sent to the 

second set, which includes the arbitration agreement. Only when 

they complete both sets of forms do they receive access to their 

worker dashboards. David declared it was “impossible” to go 

through the onboarding process without seeing and signing the 

arbitration agreement. Once a prospective employee completes 

the onboarding process, his or her information is forwarded to a 

human reviewer, who ensures the documentation is complete. 

David’s testimony was a generic description of the onboarding 

process rather than conveying personal knowledge of Fisher’s 

onboarding; she described documents and account displays as 

similar to what Fisher would have seen.

Bruton also described the standard onboarding process. 

Specifically with respect to Fisher, Bruton provided a copy of the 
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e-mail advising Fisher of his job offer and providing a link to 

create his account; the letter offering Fisher his position; emails 

that were automatically generated when Fisher accepted the 

position and when he had completed his onboarding documents; a 

copy of the arbitration agreement located in Fisher’s online 

account with Fisher’s name keyed in and a date of October 3, 

2018; and copies of other onboarding documents located in 

Fisher’s account.

In opposition to arbitration, Fisher submitted a declaration 

in which he described a different onboarding experience than the 

general process Bird had described. Fisher declared he never 

saw the arbitration agreement during his onboarding or 

employment, and he never signed it. It appeared in his file on 

the morning of January 8, 2019, more than one month after his 

employment had been terminated. Fisher produced an electronic 

mail message from January 8, 2019, in which he complained 

about new documents appearing in his online file. In this 

message, Fisher wrote that he had looked at his online account 

“multiple times today and throughout December and those 

onboarding documents were just added. Unfortunately those 

were not from hiring and added later.” Fisher asked for “time 

stamped proof of those documents you just added, information 

and policies in them were not available or [intact] on hiring date. 

Seems very questionable.” After he complained, Fisher declared, 

he was never able to log into his online account again.

The trial court ruled Fisher’s negligence cause of action, 

based on injuries sustained when he was a customer of Bird and 

covered by a separate agreement with a signed arbitration 

agreement, was subject to arbitration. With respect to the claims 

arising from Fisher’s employment, however, the court declined to 
6

order the non-negligence causes of action to arbitration. The 

court described Bird’s evidence “of how the computerized process 

that Plaintiff went through is supposed to work” and ruled Bird 

had provided evidence sufficient to meet its initial burden of 

authenticating the arbitration agreement it claimed Fisher had 

completed during the onboarding process. The burden of proof 

then shifted to Fisher, who “submitt[ed] a detailed and firm 

declaration that the process did not work as intended in his 

specific case and submitt[ed] contemporaneous writings which 

show that this has always been his position.” Weighing the 

evidence, the court observed, “It might be true that the process 

generally works in the manner described by Defendants. But 

that does not contradict Plaintiff’s statement that it worked 

differently in his specific case. Both sets of testimony can be true 

at the same time.” The court noted the absence of evidence that 

“either explains what happened to Plaintiff specifically or directly 

and from personal knowledge negates the facts that Plaintiff 

describes.” Such evidence, the court noted, could come through 

information technology investigation or from the human 

resources employee tasked with reviewing Fisher’s files after the 

onboarding process was complete.

The court concluded, “Defendants have produced a generic 

description of how their process works and produced a document 

from their files with Plaintiff’s name on it. Plaintiff has testified 

that the system did not work as it was designed in his case, that 

he did not sign the document, and that it appeared in his file only 

after he had already been fired.” The court ruled that Fisher met 

his burden of proving he did not sign the arbitration agreement, 

and because the parties had not agreed to arbitrate, it denied the 

motion to compel arbitration of Fisher’s employment claims.
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II. Motion for Reconsideration

Bird moved for reconsideration of the court’s order denying 

its motion to compel arbitration. In conjunction with this motion, 

Bird provided the declaration of Justin Black, who had performed 

searches relating to Fisher in the company’s computer records. 

Black provided the results of his record searches, including the 

computer’s records of when forms associated with Fisher’s 

account were submitted and the computer-generated engagement 

records showing when Fisher opened his job offer, accepted the 

offer, began the onboarding process, and completed the 

onboarding process. Black declared “[t]he type of information” he 

had obtained from his computer searches was “consistent with 

the information that exist[s] generally” based on the system’s 

processes. “[N]othing in the data” from the computer records 

suggested any deviation from the standard onboarding process 

with respect to Fisher. Black also described and submitted 

computer records showing when the arbitration agreement was 

inserted into the overall onboarding system, explained that 

queries on Fisher’s online dashboard brought up documents 

including the arbitration agreement, and provided an example of 

the worker dashboard and a list of documents provided to 

California workers during the onboard system process.

The court found Bird’s ostensibly new evidence was 

available to Bird in conjunction with the original motion. 

Nevertheless, because this was a developing area of the law and 

Fisher’s position may not have been clear to Bird until the 

opposition was filed, Bird had offered a satisfactory explanation 

for the failure to produce this evidence at an earlier time 

However, the new information did not directly address the 

central issue of whether the computer program had worked as 
8

intended in this particular case. The court stated, “While it is a 

good thing to now have this additional evidence in the record, it 

does not change or eliminate any of the basic problems with this 

motion.” The court explained, “Defendants’ original motion 

required the court to assume that the electronic onboarding 

process worked correctly. The motion for reconsideration still 

requires that assumption. Providing the specific computer 

records that correspond to Plaintiff does nothing to prove or 

disprove Plaintiff’s assertion that those records were generated in 

error.” The court denied the motion for reconsideration. Bird 

appeals.

DISCUSSION

I. Standard of Review

Although the standard of review typically applicable to 

review of a court’s ruling on a motion to compel arbitration is the 

substantial evidence standard (Lane v. Francis Capital 

Management LLC (2014) 224 Cal.App.4th 676, 683), Bird argues 

this court should review the trial court’s ruling de novo because 

the trial court applied the wrong legal standard in determining 

whether the parties agreed to arbitrate. According to Bird, the 

court considered “factors extraneous to the execution and 

adoption” of the arbitration agreement, specifically its concerns 

about constitutional rights involved in compelling arbitration, 

rather than applying the procedures laid out in Civil Code section 

1633.9 for determining whether an electronic signature is 

authentic.

Bird’s argument that the court applied the wrong legal 

standard is based on comments the trial court made at argument 

about the seriousness of the constitutional rights at issue. While 
9

the court did comment on the constitutional rights implicated in 

ruling on motions to compel arbitration, Bird focuses on these 

statements to the exclusion of the court’s clear and thorough 

written orders delineating the basis for its rulings: Bird asks this 

court to disregard the court’s written explanation of its reasons 

for refusing to compel arbitration and to conclude the court 

actually reached its decision on impermissible grounds. This we 

may not do. A judge’s comments at oral argument do not 

supplant, and may not be used to impeach, its final order. (See 

Diaz v. Professional Community Management, Inc. (2017) 

16 Cal.App.5th 1190, 1206 [court’s oral commentary is merely an 

informal statement of its views; the written order constitutes the 

ruling]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 

624, 633.)

The trial court’s orders demonstrate the court did not 

refuse to compel arbitration because of its consideration of 

constitutional rights; it decided not to compel arbitration because 

it found persuasive Fisher’s evidence he did not enter into the 

arbitration agreement. Bird has not established the court 

applied the wrong legal standard, nor has it demonstrated a de 

novo standard of review, rather than the substantial evidence 

standard, should be applied here. 

II. Challenges to the Sufficiency of the Evidence

A party petitioning to compel arbitration bears the burden 

of establishing the existence of a valid agreement to arbitrate by 

a preponderance of the evidence, and the party opposing the 

petition has the burden of proving by a preponderance of the 

evidence any fact necessary to its defense. (Pinnacle Museum 

Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 

55 Cal.4th 223, 236.) Bird argues the evidence was insufficient to 
10

support the trial court’s ruling Fisher did not electronically sign 

the arbitration agreement. Under the substantial evidence

standard of review, “we view the evidence in the light most 

favorable to the prevailing party, and then consider whether this 

evidence is sufficient to allow a reasonable trier of fact to reach 

the challenged decision.” (Sanchez v. Martinez (2020) 

54 Cal.App.5th 535, 548.) The evidence was sufficient to support 

the trial court’s order.1

Civil Code section 1633.9, subdivision (a) provides an 

electronic record or 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).) Courts determine the effect of an electronic 

record or signature attributed to a person “from the context and 

surrounding circumstances at the time of its creation, execution, 

or adoption, including the parties’ agreement, if any, and 

otherwise as provided by law.” (Id., subd. (b).)

1 Bird does not claim the contract here “eviden[ces] a 

transaction involving commerce” (9 U.S.C. § 2) such that the FAA

would apply. The party seeking to apply the FAA “bears the 

burden to present evidence establishing a contract with the 

arbitration provision affects one of . . . three categories of 

activity” related to or involving interstate commerce. (Carbajal v. 

CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238; see Lane v. 

Francis Capital Management LLC, supra, 224 Cal.App.4th at 

p. 687.) The failure to present such evidence “renders the FAA 

inapplicable.” (Carbajal, at p. 238; Lane, at p. 688.) Accordingly, 

we do not consider federal law in conducting our review.
11

Bird presented evidence of how the onboarding system is 

designed to work, computer-generated records specific to Fisher’s 

onboarding, and Black’s declaration that the records yielded no 

indication the system had not worked in its prescribed manner 

during Fisher’s onboarding.2 Fisher presented evidence he did 

not sign the arbitration agreement and it, like other documents, 

appeared in his online account after the fact with an electronic 

signature he did not provide. The trial court found Fisher’s 

evidence convincing, particularly his contemporaneous complaint 

about finding new onboarding documents in his account after his 

termination, and it concluded that while Bird had clearly 

demonstrated how its system was supposed to work, Fisher had 

2 Some of this evidence was presented in conjunction with 

Bird’s original motion to compel arbitration, and some was 

submitted with its motion for reconsideration. Fisher contends 

Bird could have presented the evidence submitted with the 

motion for reconsideration when it filed its reply brief in support 

of the original motion, and therefore the motion for 

reconsideration failed to meet the requirements of Code of Civil 

Procedure section 1008. “ ‘Section 1008, subdivision (a) requires 

that a motion for reconsideration be based on new or different 

facts, circumstances, or law. A party seeking reconsideration also 

must provide a satisfactory explanation for the failure to produce 

the evidence at an earlier time.’ [Citation.] A trial court may not 

grant a party’s motion for reconsideration that does not comply 

with section 1008.” (Cox v. Bonni (2018) 30 Cal.App.5th 

287, 312.) While it appears the court would have acted within its 

discretion if it had rejected the motion for reconsideration on the 

ground that Bird failed to demonstrate its evidence could not 

have been presented previously, we need not review the basis for 

the court’s rejection of the motion for reconsideration in order to 

resolve the issues presented on appeal.
12

demonstrated that in his case it did not work as designed. The 

evidence before the trial court permitted this conclusion. “We 

look at the evidence in support of the successful party, 

disregarding any contrary showing, and we resolve all conflicts in 

favor of the respondent, indulging in all legitimate and 

reasonable inferences to uphold the verdict if possible. [Citation.] 

When two or more inferences can reasonably be deduced from the 

facts, we do not substitute our deductions for those of the finder 

of fact. [Citation.] We must affirm if substantial evidence 

supports the trier of fact’s determination, even if other 

substantial evidence would have supported a different result.” 

(Canister v. Emergency Ambulance Services, Inc. (2008) 

160 Cal.App.4th 388, 394.)

Relying on Ruiz v. Moss Bros. Auto Group, Inc. (2014) 

232 Cal.App.4th 836, Espejo v. Southern California Permanente 

Medical Group (2016) 246 Cal.App.4th 1047, Fabian v. Renovate 

America, Inc. (2019) 42 Cal.App.5th 1062, and similar cases, Bird

argues it made an evidentiary showing consistent with decisional 

law concerning the nature of the showing the proponent of an 

electronically signed arbitration agreement must make. There is 

no dispute the evidence Bird provided is evidence of the type 

California courts look to when considering contested electronic 

signatures. But none of these cases stands for the proposition 

that once a party produces evidence of this nature, a trial court is 

bound to find the electronic signature the act of a person and is 

foreclosed from considering other evidence bearing on whether 

the alleged signatory did in fact sign the agreement. Narrowing 

the inquiry in this manner would contravene the statutory 

requirement that the court determine the effect of an electronic 

attributed to a person “from the context and surrounding 
13

circumstances at the time of its creation, execution, or adoption, 

including the parties’ agreement, if any.” (Civ. Code, § 1633.9, 

subd. (b).)

Repeatedly dismissing Fisher’s evidentiary showing as “a 

self-serving declaration” and describing its own evidence as 

“overwhelming,” Bird concludes the “weight and character” of its 

evidence was such that the court “could not reasonably reject it.” 

The court, however, did not reject Bird’s evidence. It accepted the 

evidence as true, and ruled this was sufficient to meet Bird’s 

initial burden to authenticate the document; however, it found 

Fisher’s evidence he had not signed the agreement to be 

persuasive. “ ‘We do not second-guess the court’s credibility calls 

or reweigh the evidence.’ ” (Washington Mutual Bank v. 

Blechman (2007) 157 Cal.App.4th 662, 670.)

Bird labels Fisher’s evidence “red herrings” and criticizes 

Fisher for not submitting evidence establishing a computer error 

had occurred. It characterizes Fisher’s evidence, provided in 

opposition to the original motion to compel arbitration, as 

“irrelevant information that failed to address” the evidence Bird 

provided with its motion for reconsideration. Citing to evidence 

Fisher provided in his opposition to the motion to compel 

arbitration, Bird points out Fisher’s contemporaneous complaint 

to Bird about new documents being added to his onboarding 

account did not specifically state an arbitration agreement was 

added, and it argues the complaint “does not rebut or in any way 

address” a declaration Bird submitted with its motion for 

reconsideration. Bird, however, fails to explain how Fisher’s 

evidentiary showing in response to the motion to compel 

arbitration can be faulted for failing to address evidence Bird did 

not present until it moved for reconsideration.
14

Bird contends “[n]one of the assertions or documents that 

Fisher presented show that Fisher did not sign the Arbitration 

Agreement, nor do they constitute evidence—substantial or 

otherwise—that a computer glitch or error occurred that caused 

his electronic signature to be affixed to the Arbitration 

Agreement without his knowledge or consent and thereafter 

placed in his account.” As to the first point, Bird is incorrect: in 

his detailed declaration Fisher described the course of the 

onboarding process, distinctly recalled his surprise that there 

was no arbitration agreement and testified he had never signed 

any arbitration agreement, but one appeared in his file after his 

termination; this, along with Fisher’s supporting evidence 

demonstrating he had complained at the time that documents 

had been added to his account after the fact, did constitute 

evidence tending to show he did not sign the arbitration 

agreement. The trial court credited this evidence, and for the 

purposes of our review, so must we. “ ‘ “Where findings of fact are 

challenged on a civil appeal, we are bound by the ‘elementary, 

but often overlooked principle of law, that . . . the power of an 

appellate court begins and ends with a determination as to 

whether there is any substantial evidence, contradicted or 

uncontradicted,’ to support the findings below.” ’ ” (Lenk v. TotalWestern, Inc. (2001) 89 Cal.App.4th 959, 968.)

As far as proving a computer error occurred, Bird provides 

no authority, and we are aware of none, requiring a party who 

denies he or she entered into an arbitration agreement to provide 

evidence establishing the mechanism by which the agreement he 

or she denies signing was created and placed in his or her 

electronic account. Nor is exactly why or how the arbitration 

agreement ended up in Fisher’s account necessary to the court’s 
15

rulings: While the court believed computer error was the 

probable and obvious explanation of why Bird’s records indicated 

Fisher had signed the agreement when Fisher maintained he had 

not, the factual issue the court resolved, and the finding we 

review on appeal, is that Fisher did not enter into the arbitration 

agreement. As we have previously explained, this finding was 

supported by substantial evidence. Bird has failed to 

demonstrate error.

DISPOSITION

The order is affirmed. Respondent shall recover his costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.