Filed 11/30/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

HOPE GAMBOA,

Plaintiff and Respondent,

v.

NORTHEAST COMMUNITY 

CLINIC,

Defendant and Appellant.

B304833

(Los Angeles County

Super. Ct. No. 19STCV25865)

APPEAL from an order of the Superior Court of Los Angeles 

County, Maureen Duffy-Lewis, Judge. Affirmed.

Employee Justice Legal Group, PC, Kaveh S. Elihu and Sean 

P. Hardy for Plaintiff and Respondent. 

Manning & Kass, Ellrod, Ramirez, Trester LLP, Steven C. 

Amundson and Ladell Hulet Muhlestein for Defendant and 

Appellant. 

______________________
2

INTRODUCTION

Hope Gamboa sued the Northeast Community Clinic (Clinic) 

for employment related claims. The Clinic moved to compel 

arbitration under Code of Civil Procedure section 1281.2.1 The

trial court denied the motion.

Because the Clinic failed to prove the existence of an 

arbitration agreement by a preponderance of the evidence after 

Gamboa produced evidence disputing an agreement, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Lawsuit

In May 2018, the Clinic hired Gamboa as a scanner. As a 

condition to beginning her employment, Gamboa signed several 

onboarding documents. 

In July 2018, Gamboa sustained an injury to her hand that 

affected her work. After Gamboa requested medical 

accommodations, the Clinic terminated her employment. 

In July 2019, Gamboa sued the Clinic for multiple causes of 

action relating to her employment, including discrimination, 

retaliation and failure to provide reasonable accommodation. 

B. The Motion To Compel Arbitration

In August 2019, the Clinic filed a motion to compel 

arbitration. The Clinic argued that Gamboa had signed an 

arbitration agreement as part of her required onboarding 

documents. The Clinic contended claims in Gamboa’s lawsuit 

were subject to arbitration. In support of the motion, the Clinic 

filed a declaration by Marina Lopez. Lopez said she was the 

1 Undesignated statutory references are to the Code of Civil 

Procedure.
3

director of human resources for the Clinic. She said as part of 

Gamboa’s employment agreement, Gamboa had signed an 

arbitration agreement, which was in effect while she worked for 

the Clinic. Lopez attached the arbitration agreement as an exhibit 

to her declaration. The arbitration agreement appeared to be 

signed by a representative of the Clinic and an employee. 

In December 2019, Gamboa opposed the motion on two 

grounds. First, the Clinic did not establish it had a valid 

arbitration agreement with her. Second, the arbitration 

agreement provisions were unconscionable and unenforceable. 

On February 4, 2020, Gamboa filed a declaration in support 

of her opposition. She said she reviewed the arbitration 

agreement attached to Lopez’s declaration but does “not remember 

these documents at all.” She said that before this case, no one had 

ever told her about an arbitration agreement or explained what it 

was. She said if she had known about the arbitration agreement 

and had been told about its provisions, she would not have signed 

it. Gamboa also filed evidentiary objections to Lopez’s declaration 

and the attached arbitration agreement. 

On February 7, 2020, the Clinic filed a reply brief. The 

Clinic argued that Gamboa’s failure to remember the arbitration 

agreement did not invalidate the agreement and that the 

agreement was not procedurally or substantively unconscionable. 

The Clinic did not file a supplemental declaration.

On February 18, 2020, at a hearing during which no 

evidence or testimony was submitted, the trial court said, “The 

defendant didn’t show a contract was formed.” The same day, the 

court issued its rulings in a minute order, denying the motion to 

compel arbitration. The court sustained Gamboa’s objections to 

the Clinic’s proffered evidence. The court found an arbitration 

agreement did not exist between the parties: “Defendant does no 
4

[sic] meet its burden to show a contract was formed.” The court 

also found the proffered arbitration agreement was both 

procedurally and substantively unconscionable. 

DISCUSSION

The Clinic argues the trial court erred by finding the Clinic 

failed to establish it had an arbitration agreement with Gamboa 

and by finding the proffered arbitration agreement was 

unconscionable. 

We disagree with the Clinic on the first issue: The trial 

court did not err by finding the Clinic failed to establish an 

arbitration agreement. Consequently, we need not reach the 

second issue. 

Section 1281.2

Under section 1281.2, a trial court must grant a motion or 

petition to compel arbitration only “if it determines that an 

agreement to arbitrate the controversy exists.”2 The court makes 

this determination in a summary process. (See § 1290.2.) “[T]he 

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 

2 Section 1281.2 requires arbitration only if an agreement 

exists between the parties: “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 that 

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.” The section includes exceptions not relevant 

to this opinion. (See § 1281.2, subds. (a)-(d).)
5

determination.” (Engalla v. Permanente Medical Group, 

Inc. (1997) 15 Cal.4th 951, 972.)

The burden of persuasion is always on the moving party to 

prove the existence of an arbitration agreement with the opposing 

party by a preponderance of the evidence: “Because the existence 

of the agreement is a statutory prerequisite to granting the 

[motion or] petition, the [party seeking arbitration] 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 (Rosenthal).)

However, the burden of production may shift in a three-step 

process. 

First, the moving party bears the burden of producing 

“prima facie evidence of a written agreement to arbitrate the 

controversy.” (Rosenthal, supra, 14 Cal.4th at p. 413.) The 

moving party “can meet its initial burden by attaching to the 

[motion or] petition a copy of the arbitration agreement purporting 

to bear the [opposing party’s] signature.” (Bannister v. 

Marinidence Opco, LLC (2021) 64 Cal.App.5th 541 (Bannister)) 

Alternatively, the moving party can meet its burden by setting 

forth the agreement’s provisions in the motion. (Condee v. 

Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219

(Condee); see also Cal. Rules of Court, rule 3.1330 [“The provisions 

must be stated verbatim or a copy must be physically or 

electronically attached to the petition and incorporated by 

reference.”].) For this step, “it is not necessary to follow the 

normal procedures of document authentication.” (Condee, at p. 

218.) If the moving party meets its initial prima facie burden and 

the opposing party does not dispute the existence of the arbitration 

agreement, then nothing more is required for the moving party to 

meet its burden of persuasion.
6

If the moving party meets its initial prima facie burden and 

the opposing party disputes the agreement, then in the second 

step, the opposing party bears the burden of producing evidence to 

challenge the authenticity of the agreement. (See Condee, supra,

88 Cal.App.4th at p. 219.) The opposing party can do this in 

several ways. For example, the opposing party may testify under 

oath or declare under penalty of perjury that the party never saw 

or does not remember seeing the agreement, or that the party 

never signed or does not remember signing the agreement. (See 

Bannister, supra, 64 Cal.App.5th at p. 116 [never saw or signed 

agreement]; Fabian v. Renovate America, Inc. (2019) 42 

Cal.App.5th 1062, 1065 (Fabian) [never given or signed contract];

Espejo v. Southern California Permanente Medical Group (2016) 

246 Cal.App.4th 1047, 1054 (Espejo) [did not recall seeing or 

signing document]; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 

Cal.App.4th 836, 846 (Ruiz) [did not recall signing agreement].)

If the opposing party meets its burden of producing evidence, 

then in the third step, the moving party must establish with 

admissible evidence a valid arbitration agreement between the 

parties. The burden of proving the agreement by a preponderance 

of the evidence remains with the moving party. (Rosenthal, supra,

14 Cal.4th at p. 413.)

Although “public policy favors contractual arbitration as a 

means of resolving disputes [. . .] that policy ‘“‘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.’”’” (Espejo, supra, 246 Cal.App.4th at 

p. 1057.)
7

Standard of Review

“‘“There is no uniform standard of review for evaluating an 

order denying a motion to compel arbitration.”’” (Fabian, supra,

42 Cal.App.5th at p. 1066.)

“We review an order denying a [motion or] petition to compel 

arbitration for abuse of discretion unless a pure question of law is 

presented. In that case, the order is reviewed de novo.” (Espejo,

supra, 246 Cal.App.4th at pp. 1056-1057.)

Where the decision is based on a finding of fact, “‘“we adopt a 

substantial evidence standard.”’” (Fabian, supra, 42 Cal.App.5th

at p. 1066.)

Where the decision “is based on the court’s finding that [the 

party seeking arbitration] 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.) “‘“Specifically, the question becomes whether appellant’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.’”’” 

(Id. at p. 1067.)

“‘“[W]here, as here, the judgment is against the party who 

has the burden of proof, it is almost impossible for [that party] to 

prevail on appeal by arguing the evidence compels a judgment in 

[that party’s] favor. That is because unless the trial court makes 

specific findings of fact in favor of the losing [party], we presume 

the trial court found the [party’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.”’” (Fabian, supra, 42 Cal.App.5th at 

p. 1067.) “The appellate court cannot substitute its factual 

determinations for those of the trial court; it must view all factual 
8

matters most favorably to the prevailing party and in support of 

the judgment. [Citation.] ‘“All conflicts, therefore, must be 

resolved in favor of the respondent.”’”3 (Ibid.)

Gamboa Produced Evidence To Challenge the Authenticity of 

the Arbitration Agreement

Although not explicit, the trial court necessarily found 

Gamboa challenged the authenticity of the arbitration agreement 

because the court ultimately found the Clinic did not “meet its 

burden to show a contract was formed.” (Ruiz, supra, 232 

Cal.App.4th at p. 842 [“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.”].)

The trial court did not err. Substantial evidence supports a 

finding Gamboa challenged the agreement. The Clinic may have 

met its burden on the first step by attaching to Lopez’s declaration 

a copy of the arbitration agreement purporting to bear Gamboa’s 

signature. (See Bannister, supra, 64 Cal.App.5th at p. 541.) But 

Gamboa likewise met her burden on the second step by filing an 

opposing declaration, saying she did not recall the agreement and 

would not have signed it if she had been aware of it: “I do not 

remember these documents at all . . . . Had I been made aware of 

3 The Clinic suggests review should be de novo, claiming the

appeal turns on legal issues or issues based on undisputed facts. 

But this appeal turns on facts and evidence that were hotly 

contested. And even under de novo review, the trial court did not 

err. The Clinic failed to meet its burden of proving the existence of 

an arbitration agreement with Gamboa by a preponderance of the 

evidence because, as discussed, the Clinic did not proffer any 

admissible evidence of the challenged agreement.
9

the existence of an arbitration agreement, and been explained its 

provisions, I would not have signed any such documents.” 

Ruiz, supra, 232 Cal.App.4th at page 836, is instructive. In 

that case, the defendant petitioned to compel arbitration and 

confronted the plaintiff with an arbitration agreement. (Id. at 

pp. 838-840.) “In his opposing declaration, [the plaintiff] averred 

he did not recall signing any arbitration agreement [at any time] 

and if he had been presented with an agreement that limited his 

ability to sue [the defendant] he would not have signed it.” (Id. at 

p. 840.) The trial court “denied the petition on the ground [the 

defendant] ‘failed to establish that an [a]rbitration [a]greement in 

fact exists between’” the parties. (Id. at p. 841.) The court of

appeal affirmed, explaining that not remembering an arbitration 

agreement is a challenge to its signature: “Though [the plaintiff] 

did not deny that the electronic signature on the [arbitration] 

agreement was his, he claimed he did not recall signing the 

[arbitration] agreement and would not have signed it had it been 

presented to him. In the face of [plaintiff’s] failure

to recall signing the [arbitration] agreement, [the defendant] had 

the burden of proving by a preponderance of the evidence that the

electronic signature was authentic.” (Id. at p. 846 [citing Evidence

Code section 1401, subdivision (a), which states, “Authentication of 

a writing is required before it may be received in evidence.”].)

The Clinic claims, without citation to authority, that Ruiz is 

distinguishable because Ruiz involved an electronic signature and

this case involves a handwritten signature. But that is a 

distinction without a legal difference. Civil Code section 1633.7, 

subdivision (b), provides electronic and handwritten signatures 

have the same legal effect and are equally enforceable. (Civ. Code, 

§ 1633.7, subd. (a) [“A record or signature may not be denied legal 

effect or enforceability solely because it is in electronic form.”].)
10

The Clinic’s reliance on Condee, supra, 88 Cal.App.4th at 

page 215, is misplaced, and Ruiz demonstrates why. In Ruiz, the 

defendant also relied on Condee to argue it did not have to 

authenticate the signature on the arbitration agreement to meet 

its burden of proving by a preponderance of the evidence that an 

arbitration agreement existed between the parties. (Ruiz, supra,

232 Cal.App.4th p. 845.) The court of appeal disagreed, explaining 

“[p]roperly understood, Condee holds that a petitioner is not 

required to authenticate an opposing party’s signature on an 

arbitration agreement as a preliminary matter in moving for 

arbitration or in the event the authenticity of the signature is not 

challenged.” (Id. at p. 846.) In Ruiz, the court explained that the 

plaintiff had challenged the signature’s authenticity by saying he 

did not recall the arbitration agreement. (Ibid.)

In any case, we need not decide whether Gamboa challenged 

the authenticity of her purported signature on the arbitration 

agreement. It was enough that she challenged the authenticity of 

the agreement by saying under penalty of perjury that she did not 

remember it.

The Clinic Failed To Establish a Valid Arbitration 

Agreement by a Preponderance of the Evidence

The trial court found the Clinic did not “meet its burden to 

show a contract was formed.” (Ruiz, supra, 232 Cal.App.4th at 

p. 842.) The court did not err. The Clinic presented no evidence 

that Gamboa saw or signed the arbitration agreement because the 

court sustained Gamboa’s objections to the Clinic’s proffered 

evidence. 

The court did not abuse its discretion in excluding the 

Clinic’s evidence. (See In re Marriage of Swain (2018) 21 

Cal.App.5th 830, 837 [“A trial court’s decision about the 
11

admissibility of evidence is ordinarily reviewed under the abuse of 

discretion standard”].) Gamboa made several objections to Lopez’s 

declaration, its four individual paragraphs and the attached 

arbitration agreement, all of which the court sustained. In 

essence, the Clinic’s proffered evidence was inadmissible because 

it lacked foundational facts. (See Evid. Code, § 403, subd. (a)(1)-(3)

[“The proponent of the proffered evidence has the burden of 

producing evidence as to the existence of the preliminary fact, and 

the proffered evidence is inadmissible unless the court finds that 

there is evidence sufficient to sustain a finding of the existence of 

the preliminary fact,” including relevance, personal knowledge or 

authentication of a writing].)

First, in her declaration, Lopez made significant assertions 

in paragraphs two (that Gamboa was employed by the Clinic for 

about two months in 2018), three (that “plaintiff” signed the 

arbitration agreement) and four (that the agreement was in effect 

during “plaintiff’s” employment). But Lopez did not provide the 

requisite preliminary facts to show she had personal knowledge 

about what she said in those paragraphs. (See Evid. Code, §§ 403, 

subd. (a)(2), 702, subd. (a) [“[T]he testimony of a witness 

concerning a particular matter is inadmissible unless he has 

personal knowledge of the matter. Against the objection of a 

party, such personal knowledge must be shown before the witness 

may testify concerning the matter.”].)4 Lopez’s boilerplate 

4 Although Lopez said in paragraph one that she was the 

human resources director for the Clinic at the time she signed the 

declaration in August 2019, she did not say whether she watched 

Gamboa sign the agreement, whether she knew Gamboa, whether 

she worked at the Clinic during the same time as Gamboa, or 

whether she was a custodian of records for the Clinic. Notably, 
12

sentence, “If called as a witness I could and would competently 

testify under oath to the above facts which are personally known 

to me,” is not sufficient to establish personal knowledge. (Snider 

v. Snider (1962) 200 Cal.App.2d 741, 754 [“‘Where the facts stated 

do not themselves show it, such bare statement of the affiant has 

no redeeming value and should be ignored.’”].) 

Second, the declaration’s first paragraph (that Lopez was the 

human resources director) by itself was irrelevant. (See Evid. 

Code, §§ 350 [“No evidence is admissible except relevant 

evidence.”], 403, subd. (a)(1).) 

Finally, the arbitration agreement was never authenticated. 

(See Evid. Code, §§ 403, subd. (a)(3), 1400, 1401 [“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.”].)

Even if the court had admitted Lopez’s declaration and the 

arbitration agreement into evidence, those documents would not 

have compelled a finding in the Clinic’s favor as a matter of law as 

required for a reversal. This case is like Fabian, supra, 42 

Cal.App.5th at page 1062. In that case, the defendant petitioned 

to compel arbitration and confronted the plaintiff with an 

arbitration agreement. (Id. at pp. 1064-1065.) In a supporting 

declaration, the defendant’s director of compliance “‘summarily 

asserted’ [the plaintiff] ‘entered into’ the [c]ontract.” (Id. at 

p. 1069.) In her opposing declaration, the plaintiff said she did not 

sign the contract. (Id. at p. 1065.) The trial court denied the 

petition on the ground the defendant “failed to establish that [the 

even after Gamboa objected to Lopez’s declaration, Lopez did not 

file a supplemental declaration with this information. 
13

plaintiff] electronically [signed] the subject contract.” (Id. at 

p. 1066.) The court of appeal affirmed because the defendant’s 

declarant did not explain how he knew the plaintiff signed the 

contract: “By not providing any specific details about the 

circumstances surrounding the [c]ontract’s execution, [defendant’s 

declarant] offered little more than a bare statement that [plaintiff] 

‘entered into’ the [c]ontract without offering any facts to support 

that assertion. This left a critical gap in the evidence supporting 

[defendant’s] petition. [¶] . . . [O]n appeal, [the defendant] was 

required to establish that its evidence compelled a finding in its 

favor as a matter of law. The [c]ontract and [defendant’s] 

declaration do not compel this finding.” (Id. at p. 1070.) In her 

declaration, Lopez likewise did not explain how she knew Gamboa 

had seen, much less signed, the arbitration agreement. 

The Clinic’s reliance on Espejo, supra, 246 Cal.App.4th at 

page 1047, is misplaced. In that case, the court of appeal reversed 

an order denying a petition to compel arbitration because one of 

the defendant’s supporting declarations was so detailed it 

established the plaintiff’s signature on the arbitration agreement. 

(Id. at p. 1062 [explaining the “declaration offered the critical 

factual connection” and “provide[d] the necessary factual details to 

authenticate the document” properly].)

Finally, the Clinic mistakenly argues that the signature on 

the arbitration agreement is authenticated when compared to the 

signature on Gamboa’s declaration. The Clinic forfeited this

argument because it never raised it in the trial court. (See Ochoa 

v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 

3 [“It is axiomatic that arguments not asserted below are waived 

and will not be considered for the first time on appeal.”].) Even if 

it were properly raised, it would not compel reversal because it 

would not prove the trial court’s finding—that the Clinic failed to 
14

meet its burden of establishing by a preponderance of the evidence 

that Gamboa signed the arbitration agreement—was “erroneous as 

a matter of law.” (Fabian, supra, 42 Cal.App.5th at p. 1066.) This 

is especially true since the signatures have notable differences.

In sum, once Gamboa produced evidence challenging the 

authenticity of the purported arbitration agreement, the Clinic 

was required to rebut the challenge by establishing by a 

preponderance of the evidence that the agreement was valid. The 

Clinic did not have to authenticate Gamboa’s signature on the 

arbitration agreement. The Clinic could have met its burden in 

other ways, including a declaration from the Clinic’s custodian of 

records. But proferring no admissible evidence was insufficient.

DISPOSITION

The order denying the Clinic’s motion to compel arbitration 

under section 1281.2 is affirmed. Gamboa is entitled to her costs 

on appeal.

IBARRA, J.*

We concur:

PERLUSS, P. J. FEUER, J.

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.