Filed 5/15/24 Ramirez v. Golden Queen Mining Co. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CARLOS RAMIREZ,

Plaintiff and Respondent,

v.

GOLDEN QUEEN MINING COMPANY, LLC,

Defendant and Appellant.

F086371

(Super. Ct. No. BCV-22-102808)

OPINION

APPEAL from an order of the Superior Court of Kern County. David R. Zulfa, 

Judge.

Belden Blaine Raytis, T. Scott Belden, Kaleb L. Judy and Tyler D. Anthony for 

Defendant and Appellant.

Bibiyan Law Group, David D. Bibiyan and Henry G. Glitz for Plaintiff and 

Respondent.

-ooOooCarlos Ramirez filed a class action lawsuit against his former employer alleging 

various violations of the Labor Code and unfair competition. The employer moved to 

compel arbitration. The trial court denied the motion on the ground that the employer 

failed to demonstrate the existence of an executed arbitration agreement. The employer 
2.

appealed, contending it carried the initial burden of making a prima facie showing that a 

written arbitration agreement existed. The employer also contended Ramirez’s 

statements that he did not recall being presented with or signing an arbitration agreement 

were insufficient to rebut its initial showing and create a factual dispute about the 

authenticity of a handwritten signature.

There is a split of authority among the Courts of Appeal as to what constitutes 

sufficient evidence to create a factual dispute about the authenticity of a handwritten 

signature on a document agreeing to arbitration. (Cf. Iyere v. Wise Auto Group (2023) 

87 Cal.App.5th 747, 757–758 (Iyere) with Gamboa v. Northeast Community Clinic

(2021) 72 Cal.App.5th 158, 164–165 (Gamboa).) We join Iyere in concluding that an 

individual is capable of recognizing his or her handwritten signature and if that individual 

does not deny a handwritten signature is his or her own, that person’s failure to remember 

signing the document does not create a factual dispute about the signature’s authenticity. 

(Iyere, supra, at p. 757.) 

Here, Ramirez’s declaration asserts he does not recall ever being presented with or 

signing an arbitration agreement. The declaration, however, omits several significant 

facts. First, the declaration fails to state whether Ramirez even reviewed the arbitration 

agreement, the related handbook acknowledgement, or any other documents purportedly 

signed by him and included in the employer’s moving papers. A review of those 

documents, the handwritten signatures, and the handwritten initials might have improved 

Ramirez’s recollection. Second, the declaration does not address whether Ramirez 

recalled signing the handbook acknowledgement, which is the document relied upon by 

the employer to show his consent to arbitration. The acknowledgement included a 

bolded, underlined sentence stating he agreed to the terms of the arbitration agreement in 

the employee handbook. Third, Ramirez’s declaration does not state, one way or the 

other, whether the handwritten signature on the handbook acknowledgement is his. 
3.

Based on these omissions, we conclude Ramirez did not rebut the employer’s initial 

showing that an arbitration agreement existed.

We therefore reverse the order denying the motion to compel arbitration and 

remand for further proceedings to address Ramirez’s unconscionability defense.

FACTS

Appellant Golden Queen Mining Company, LLC (Queen Mining) is a California 

limited liability company that operates the Soledad Mountain gold and silver mine in 

Mojave, California. The open-pit mine operates 24 hours per day, 365 days per year. 

Queen Mining’s operations use equipment, explosives and chemicals obtained from 

sources outside California. All the gold and silver recovered from the crushed ore is sold 

to a refinery outside of California. Based on its purchases and sales, Queen Mining 

contends its business operations involve interstate commerce and, therefore, the Federal 

Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) governs its arbitration agreements. 

In March 2019, Ramirez was hired by Queen Mining as a nonexempt hourly 

employee to perform electrical work. Ramirez’s employment ended in August 2022. As 

part of Queen Mining’s onboarding process, new employees are provided with many 

documents including an employee handbook containing an arbitration agreement. The 

documents allegedly provided to Ramirez are described below.

PROCEEDINGS

In October 2022, Ramirez filed a class action complaint against Queen Mining 

alleging causes of action for failure to pay overtime wages, pay minimum wages, provide 

meal periods, provide rest periods, pay all wages due upon termination, provide accurate 

wage statements, indemnify employees for expenses incurred in performing their jobs, 

and pay for vested, unused vacation time upon termination. 

Motion to Compel

In April 2023, Queen Mining filed a motion to compel arbitration and supporting 

declarations. The declaration of Latasha Marshall, Queen Mining’s human resources 
4.

manager, asserted Ramirez “signed an ‘Arbitration Agreement’ on or about March 28, 

2019.” Marshall attached as exhibits to her declaration copies of (1) a two-page 

arbitration agreement, (2) a handbook acknowledgement purportedly signed by Ramirez 

and dated March 28, 2019, and (3) six other documents purportedly signed by Ramirez 

and dated March 28, 2019. 

Opposition

Ramirez opposed the motion, contending that Queen Mining could not prove the 

existence of an arbitration agreement between the parties because (1) Queen Mining had 

failed to authenticate the proffered arbitration agreement and (2) even if authentic, a 

signature on an employee handbook acknowledgement did not constitute valid assent to 

arbitration. Alternatively, Ramirez argued any such agreement was unenforceable 

because it was procedurally and substantively unconscionable. 

Ramirez’s declaration in support of his opposition to the motion to compel is 

relatively short and, therefore, to accurately describe his evidence, we quote the 

declaration’s last six numbered paragraphs:

“3. In or around March 2019, I was hired by [Queen Mining] to work as a 

non-exempt hourly employee. My duties included electrical work.

“4. I do not recall ever being presented with an arbitration agreement, 

either in person or electronically. 

“5. I do not recall ever signing an arbitration agreement for [Queen 

Mining], either on paper or electronically.

“6. Nobody ever informed me about an arbitration agreement, a desire for 

me to sign an arbitration agreement, or explained to me what an arbitration 

agreement is.

“7. Until my counsel explained it to me, I did not know what arbitration 

was. If someone had explained to me what an arbitration agreement was, I 

would not sign it.
5.

“8. As I do not recall ever being provided with or signing an arbitration 

agreement, I do not believe the Court should consider any such claim or 

document offered by [Queen Mining] to be genuine.” 

Ramirez’s opposition papers also included evidentiary objections to the statement 

in Marshall’s declaration that he “signed an ‘Arbitration Agreement’ on or about 

March 28, 2019.” Ramirez argued (1) the assertion lacked foundation and was not 

supported by required preliminary facts; (2) Marshall lacked personal knowledge and had 

made an improper factual conclusion; and (3) the assertion was an improper legal 

conclusion in that Ramirez never signed an arbitration agreement and only purportedly 

signed an acknowledgement of the employee handbook. 

Reply

Queen Mining’s reply papers argued Ramirez’s employment as an electrical 

worker, which involved keeping the mine’s electrical power distribution systems 

connected to the electrical grid, involved or affected interstate commerce and, thus, the 

FAA applied. Queen Mining asserted that because Ramirez did not deny signing the 

“HANDBOOK ACKNOWLEDGEMENT,” which contains a bolded, underlined 

sentence stating he agreed to the terms of the arbitration agreement, the burden did not 

shift back to it to authenticate his signature. Queen Mining’s reply was supported with 

Marshall’s supplemental declaration, which included a complete copy of Queen Mining’s 

“Employee Information & Handbook” as an attachment. The arbitration agreement is set 

forth on pages 30 and 31 of the handbook. Queen Mining argued Ramirez’s signature on 

the handbook acknowledgement was sufficient to establish his assent to the arbitration 

agreement contained in the handbook. Addressing Ramirez’s defense to enforcement, 

Queen Mining asserted the arbitration agreement was neither procedurally nor 

substantively unconscionable. 

Hearing and Decision

In May 2023, the trial court heard the motion to compel arbitration. At the 

beginning of the hearing, the court announced its tentative decision to deny the motion 
6.

based on a finding that Queen Mining failed to demonstrate the existence of an executed 

arbitration agreement. Counsel for Queen Mining argued Iyere, supra, 87 Cal.App.5th 

747, was directly on point and established Ramirez’s statement that he did not recall 

signing the arbitration agreement was insufficient to rebut Queen Mining’s initial 

showing. Counsel for Ramirez argued that nothing in Iyere should cause the court to 

reverse its tentative. After hearing from counsel, the trial court took the matter under 

submission and stated it would reread Iyere. 

The trial court’s subsequent written ruling denied the motion, repeating the 

tentative decision’s finding that Queen Mining “has failed to demonstrate the existence of 

an executed arbitration agreement.” The ruling stated the court believed the separate 

arbitration agreement at issue in Iyere was distinguishable from the arbitration provision 

included in Queen Mining’s more comprehensive employee handbook and, thus, the 

court viewed Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781 as more persuasive.1 

The court also sustained Ramirez’s evidentiary objections to Marshall’s factual assertion 

that Ramirez “signed an ‘Arbitration Agreement’ on or about March 28, 2019.”

Counsel for Ramirez prepared a proposed order denying the motion to compel 

arbitration. On May 26, 2023, the trial court signed and filed the order. 

Appeal

In June 2023, Queen Mining filed an appeal. About two weeks later, Queen 

Mining’s attorney filed a mandatory Judicial Council form APP-004, Civil Case 

Information Statement. (See Cal. Rules of Court, rule 8.100(g) [appellant must serve and 

file a completed form APP-004].) Form APP-004, Part II, item 2 contains a box followed 

by “This appeal is entitled to calendar preference/priority on appeal (cite authority):” 

This item was left blank by Queen Mining’s attorney. In a properly completed form, the 

1 Unlike this case, the acknowledgement signed in Esparza did not mention the 

arbitration agreement contained in the employee handbook. (Esparza, supra, at p. 785.) 
7.

box would have been marked and Code of Civil Procedure section 1291.2 would have 

been cited. That section provides that hearings in all proceedings brought under the 

California Arbitration Act (Code Civ. Proc., § 1280 et seq.) shall have preference over all 

other civil proceedings so that the arbitration “proceedings shall be quickly heard and 

determined.” (See Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 204, fn. 4 

[“Arbitration proceedings are entitled to calendar preference in all courts”]; Hedges v.

Carrigan (2004) 117 Cal.App.4th 578, 582.) The attorney’s misstatement of law was 

repeated in October 2023 when he filed an application for extension of time to file the 

appellant’s opening brief that stated: “(6) This case is not entitled to priority.” (See 

Bus. & Prof. Code, § 6068, subd. (d); Rules Prof. Conduct, rule 3.3(a)(1).) 

DISCUSSION

I. ESTABLISHING THE EXISTENCE OF AN ARBITRATION AGREEMENT

When presented with a motion or petition to compel arbitration, a trial court must 

determine whether an “agreement to arbitrate the controversy exists.” (Code Civ. Proc., 

§ 1281.2; Iyere, supra, 87 Cal.App.5th at p. 754.) The court makes this determination in 

a “summary proceeding” (Code Civ. Proc., § 1290.2), sitting “as a trier of fact, weighing 

all the affidavits, declarations, and other documentary evidence, as well as oral testimony 

received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente 

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

The party seeking arbitration has the burden of proving the existence of an 

arbitration agreement by a preponderance of the evidence. (Nielsen Contracting, Inc. v. 

Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1106.) The agreement must be 

in writing to be valid and enforceable. (Code Civ. Proc., § 1281.)2 The party opposing 

2 A written arbitration agreement does not necessarily need to be signed because “a 

party’s acceptance may be implied in fact [citation] or be effectuated by delegated 

consent [citation].” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

(US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); see Craig v. Brown & Root, Inc. (2000) 

84 Cal.App.4th 416, 422 [employee of 12 years impliedly agreed to arbitration by 
8.

arbitration bears the burden of proving by a preponderance of the evidence any defense to 

the agreement’s enforcement. (Nielsen, supra, at p. 1106.) Whether the arbitration 

agreement is a legally enforceable contract is determined by applying general principles 

of California contract law. (Ibid.) 

Although the party seeking arbitration bears the ultimate burden of proof as to the 

existence of an arbitration agreement, the burden of producing evidence on the issue may 

shift pursuant to a three-step process recognized by California courts. (Iyere, supra, 

87 Cal.App.5th at p. 755; Gamboa, supra, 72 Cal.App.5th at pp. 164–165.) The first step 

requires the party seeking arbitration to carry the initial burden of presenting prima facie 

evidence of a written agreement to arbitrate the controversy. (Rosenthal v. Great Western 

Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal); Gamboa, supra, at p. 165.) 

If that initial burden is met, the second step requires the party opposing arbitration to 

carry the burden of producing evidence to challenge the authenticity of the agreement. 

(Gamboa, supra, at p. 165.) If the opposing party meets the burden of producing 

sufficient evidence, the third step requires the party seeking arbitration to prove by a 

preponderance of the evidence that the parties formed a valid contract to arbitrate their 

dispute. (Id. at pp. 165–166.)

continuing to work after employer announced arbitration of employee disputes would be 

mandatory].) Also, a signature manifesting assent to arbitration need not be on the 

arbitration agreement itself. (See 24 Hour Fitness, Inc. v. Superior Court (1998) 66 

Cal.App.4th 1199, 1205, 1212 [when hired, plaintiff signed a certificate acknowledging 

receipt of a personnel handbook stating she had read and agreed to submit disputes 

arising out of her employment as described in the arbitration section of the handbook; 

appellate court concluded the agreement was enforceable].) 
9.

A. Step One: Initial Showing

1. Basic Principles

How a party seeking arbitration makes the initial prima facie showing that an 

arbitration agreement exists is addressed in California Rules of Court, rule 3.1330 (Rule 

3.1330):

“A petition to compel arbitration or to stay proceedings pursuant to Code of 

Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other 

required allegations, the provisions of the written agreement and the 

paragraph that provides for arbitration. The provisions must be stated 

verbatim or a copy must be physically or electronically attached to the 

petition and incorporated by reference.” 

Thus, a party seeking arbitration can carry its initial burden “ ‘by attaching a copy 

of the arbitration agreement purportedly bearing the opposing party’s signature.’ ” (Iyere, 

supra, 87 Cal.App.5th at p. 755, quoting Espejo v. Southern California Permanente 

Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).) The party seeking 

arbitration “need not ‘follow the normal procedures of document authentication’ and need 

only ‘allege the existence of an agreement and support the allegation as provided in rule 

[3.1330].’ ” (Iyere, supra, at p. 755, quoting Condee v. Longwood Management Corp.

(2001) 88 Cal.App.4th 215, 218.) 

2. The Evidence Produced

Queen Mining’s motion to compel arbitration alleged Ramirez signed an 

acknowledgement of an arbitration agreement on or about March 28, 2019. The motion 

was supported with Marshall’s declaration, which asserted (1) Ramirez was employed by 

Queen Mining from approximately 2019 to August 2021; (2) she was a custodian of 

records for Queen Mining; (3) Queen Mining keeps personnel files that contain 

documents made in the regular course of its business, such as employee applications, 

write-ups, and documents noting the dates an employee is hired or terminated; (4) Queen 

Mining kept a personnel file for Ramirez; (5) Ramirez signed an arbitration agreement on 

or about March 28, 2019; and (6) true and correct copies of the arbitration agreement, the 
10.

acknowledgement of the arbitration agreement signed by Ramirez, and other documents 

signed by Ramirez were attached as exhibits to the declaration. 

The arbitration agreement stated that, “[i]n the event of any dispute arising under 

or involving any provision of this Agreement ... or any dispute regarding employee’s 

employment, ... employee and Company agree to submit any such dispute to binding 

arbitration pursuant to the provisions of the Federal Arbitration Act[.]” The two-page 

arbitration agreement attached to Marshall’s declaration did not contain a signature block 

and was not signed or initialed. The “HANDBOOK ACKNOWLEDGEMENT” attached 

to Marshall’s declaration included the following:

“My signature also acknowledges and certifies that I understand and 

voluntarily agree to terms of the Company Arbitration Agreement.

“Furthermore, I understand that, because the Company cannot anticipate 

every issue that may arise during my employment, if I have any questions 

regarding the contents of the Handbook, I should consult Human 

Resources.

“I have carefully read this Acknowledgement.” 

Immediately below these three paragraphs were blank lines for an employee 

number, position, name, signature, and date. The first three blanks were completed by 

hand in blue ink with “452,” “Electrical II,” and “Carlos Ramirez.” The signature line 

appears to contain a signature for “Carlos Ramirez” in cursive handwriting and the date 

line contains a handwritten “3-28-19.” 

Another document attached to Marshall’s declaration was a “NEW HIRE 

ORIENTATION CHECKLIST.” The checklist’s left-hand column contains 19 items 

under a heading stating “I have filled out and returned the following to HR.” The initials 

“CR” are handwritten in blue ink next to 18 of the items, including “Arbitration 

Agreement” and “Handbook Acknowledgement.” The checklist’s right-hand column 

contains 14 items under a heading stating “I acknowledge receipt of the following.” All 

14 items have the handwritten initials “CR” next to them. The items include “Arbitration 
11.

Agreement,” “Corporate Governance,” and “Employee Handbook.” The employee 

signature line at the bottom of the checklist appears to contain Ramirez’s handwritten 

signature and is dated “3-28-19.” 

The attachments to Marshall’s declaration also include five other documents 

appearing to contain Ramirez’s handwritten signature along with the “3-28-19” date. 

These entries are handwritten in blue ink that appears to match the ink used for the 

signature on the handbook acknowledgement and the signature and initials on the 

checklist. 

3. The Prima Facie Showing Was Made

We conclude as a matter of law that Queen Mining carried its initial burden and 

made a prima facie showing of the existence of a written arbitration agreement. Queen 

Mining alleged the existence of an agreement and supported that allegation by complying 

with Rule 3.1330. (Iyere, supra, 87 Cal.App.5th at p. 755.) As a result, the burden of 

producing evidence shifted to Ramirez.

B. Step Two: Rebutting the Initial Showing

When the burden has shifted to the party opposing arbitration, that party must 

“identify a factual dispute as to the agreement’s existence” and must present admissible 

evidence to support the existence of that factual dispute. (Iyere, supra, 87 Cal.App.5th at 

p. 755.) For example, if a party disputes the authenticity of his or her signatures, the 

party “must offer admissible evidence creating a factual dispute as to the authenticity of 

the[] signatures. The opponent need not prove that his or her purported signature is not 

authentic, but must submit sufficient evidence to create a factual dispute and shift the 

burden back to the arbitration proponent, who retains the ultimate burden of proving, by a 

preponderance of the evidence, the authenticity of the signature.” (Ibid., first italics in 

original, second italics added.) We next describe the split of authority among the Courts 
12.

of Appeal on the question of what constitutes sufficient evidence to create a factual 

dispute about the authenticity of handwritten signatures. 

1. The Split in Authority

In Gamboa, an employee injured her hand at work and was terminated after she 

requested a medical accommodation. The employee sued her former employer for 

discrimination, retaliation, and failure to provide reasonable accommodation. (Gamboa,

supra, 72 Cal.App.5th at p. 163.) The employer filed a motion to compel arbitration that 

alleged the employee had signed an arbitration agreement as part of her required 

onboarding documents. (Ibid.) The employee’s opposition to the motion included her

declaration, which stated (1) she had reviewed the arbitration agreement included in the 

employer’s moving papers, (2) she did “ ‘not remember these documents at all,’ ” (3) no 

one had ever told her about an arbitration agreement or explained it until after her lawsuit 

began, and (4) “ ‘[h]ad I been made aware of the existence of an arbitration agreement, 

and been explained its provisions, I would not have signed any such documents.’ ” (Id. at 

pp. 163, 167.) The trial court denied the motion to compel arbitration. (Id. at p. 164.) 

The Second District, Division Seven, affirmed. (Id. at p. 171.) The court addressed 

whether the employee’s evidence was sufficient to satisfy her burden at step two by 

stating: “[W]e 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.” (Id. at p. 168.) 

In Iyere, three employees who had been terminated by their employer filed a joint 

complaint alleging many employment-related causes of action. (Iyere, supra, 

87 Cal.App.5th at p. 752.) The employer filed a motion to sever the complaints and 

compel each plaintiff to submit his claims to individual arbitration. (Ibid.) The trial court 

denied the motion, concluding the employer failed to prove the authenticity of the 
13.

plaintiffs’ signatures on the arbitration agreements and the agreements were procedurally 

and substantively unconscionable. (Id. at p. 754.) The First District, Division Four, 

reversed and remanded the matter with directions to grant the employer’s motion. (Id. at 

pp. 761–762.) 

The First District addressed whether the “plaintiffs’ evidence was sufficient to 

create a factual dispute shifting the burden of production back to” the employer. (Iyere, 

supra, 87 Cal.App.5th at p. 756.) The court stated the question was one of law and 

subject to de novo review. (Id. at p. 755.) The employer’s moving papers included 

copies of arbitration agreements bearing the plaintiffs’ apparent handwritten signatures. 

The plaintiffs’ opposition papers included each plaintiff’s declaration stating that, on the 

first day of work, he (1) was given a stack of documents, (2) was told to quickly sign the 

documents so he could get to work, and (3) signed the stack of documents immediately 

and returned them. (Id. at p. 756.) Each declaration also stated: “ ‘I do not recall ever 

reading or signing any document entitled Binding Arbitration Agreement .... I do not 

know how my signature was placed on [the document].’ ” Each plaintiff further stated 

that if he had understood that the agreement waived his right to sue the employer, he 

would not have signed it. (Ibid.)

The First District concluded the declarations did not create a factual dispute as to 

whether the plaintiffs signed the agreements, stating: 

“The declarations explicitly acknowledge that plaintiffs signed a ‘stack of 

documents’ and do not deny that the stack included the agreement. 

Although plaintiffs state they do not recall signing the agreement, there is 

no conflict between their having signed a document on which their 

handwritten signature appears and, two years later, being unable to recall 

doing so. In the absence of any evidence that their purported signatures 

were not their own, there was no evidence that plaintiffs did not in fact sign 

the agreement.” (Iyere, supra, 87 Cal.App.5th at p. 756.) 

The First District distinguished cases involving a plaintiff’s statement that he or 

she did not recall electronically signing an arbitration agreement because “the 
14.

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.” (Iyere, supra, 87 Cal.App.5th at p. 757.)

The First District acknowledged that the court in Gamboa had reached a different 

conclusion about the inability to remember signing an agreement by hand and disagreed 

with Gamboa’s conclusion. (Iyere, supra, 87 Cal.App.5th at p. 758.) The First District 

addressed the rationale in Gamboa that treated electronic signatures and handwritten 

signatures “as ‘a distinction without a legal difference’ because ‘electronic and 

handwritten signatures have the same legal effect and are equally enforceable.’ 

[Citations.]” (Iyere, supra, at p. 758.) The First District rejected that reasoning because 

“there is a considerable difference between the evidence needed to authenticate the two.” 

(Ibid.) 

Consequently, in Iyere, the First District concluded that, if a plaintiff presented 

with a handwritten signature on an arbitration agreement is unable to allege the signature 

is inauthentic or forged, the plaintiff’s failure to recall signing the agreement “neither 

creates a factual dispute as to the signature’s authenticity nor affords an independent basis 

to find that a contract was not formed.” (Iyere, supra, 87 Cal.App.5th at p. 758.) We 

agree with this conclusion and the underlying rationale. Thus, we join the federal district 

court in Prostek v. Lincare Inc. (E.D. Cal. 2023) 662 F.Supp.3d 1100 in following Iyere

and rejecting Gamboa. (Prostek, supra, at p. 1114.)

2. Ramirez’s Evidence Did Not Carry His Burden

Having chosen which principles of law should govern the evidence needed to 

carry the second step of the burden-shifting framework, we next consider how those 

principles apply to the evidence presented in this case. Stated in broad terms, the issue 
15.

presented is whether Ramirez produced sufficient evidence to create a factual dispute 

about the existence of an enforceable arbitration agreement and, as a result, shifted the 

burden of production back to Queen Mining. (See Iyere, supra, 87 Cal.App.5th at 

p. 756.) Stated in more specific terms, the issue is whether Ramirez’s evidence created a 

factual dispute as to the authenticity of the signature on the “HANDBOOK 

ACKNOWLEDGEMENT,” which included a bolded, underlined sentence stating he 

agreed to the terms of the arbitration agreement. If the answer to that question is “no,” 

then the question becomes whether Ramirez’s evidence created a factual dispute on an 

alternate ground that would lead to the conclusion the parties did not form a contract to 

arbitrate their disputes. (See generally, Civ. Code, §§ 1550 [essential elements of contract 

formation], 1565 [essentials of consent to a contract].)

Because Ramirez had the burden of producing evidence, we describe some 

seemingly obvious points that are omitted from his declaration. First, unlike Gamboa’s 

declaration in support of her opposition, Ramirez’s declaration did not state he reviewed 

the arbitration agreement and other documents attached to Marshall’s declaration. The 

idea that a witness’s inspection of a writing may refresh the witness’s memory is long 

established. (See Evid. Code, § 771 [production of writing used to refresh memory].) 

Here, Ramirez’s evidence does not allow this court to discern whether he took the 

fundamental step of inspecting the arbitration agreement included in Queen Mining’s 

moving papers. It follows that his evidence leaves us wondering whether such an 

inspection would have improved his ability to recall being presented with the arbitration 

agreement and related acknowledgement. 

Second, Ramirez’s declaration did not state he examined any of the seven 

handwritten signatures on the documents that Queen Mining contended he purportedly 

signed. Similarly, he did not state whether he examined the 32 sets of the initials “CR” 

that were handwritten on the checklist included in Queen Mining’s moving papers. As a 
16.

result, Ramirez’s declaration did not address whether the signatures or initials were 

inauthentic or forged. 

Third, Ramirez’s declaration did not state he did not recall signing the 

“HANDBOOK ACKNOWLEDGEMENT,” which is the specific document relied upon 

by Queen Mining to manifest Ramirez’s assent to arbitration. The distinction between a 

signed arbitration agreement and a signed acknowledgement is significant in the context 

of this case because Ramirez’s opposition papers explicitly raised that distinction. For 

instance, one of the grounds asserted in his objection to the statement in Marshall’s 

declaration asserting he “signed an ‘Arbitration Agreement’ on or about March 28, 2019,” 

was that Ramirez never signed an arbitration agreement and only purportedly signed an 

acknowledgement of the employee handbook. Thus, the wording of Ramirez’s 

declaration leaves open the possibility that he does recall signing the acknowledgement. 

Having identified some of Ramirez’s omissions, we next consider the evidence 

Ramirez actually presented to carry his second-step burden of producing evidence. 

Ramirez’s declaration stated (1) he did “not recall ever being presented with an 

arbitration agreement,”3(2) he did “not recall ever signing an arbitration agreement,” 

(3) no one informed him about an arbitration agreement, informed him of a desire that he 

sign an arbitration agreement, or explained to him what an arbitration agreement was, and 

(4) if someone had explained to him what an arbitration agreement was, he would not 

sign it. 

Our evaluation of Ramirez’s evidence begins with whether he offered sufficient 

evidence to create a factual dispute about the authenticity of his signature on the 

3 Read literally, Ramirez’s broad representation that he does not recall ever being 

presented with an arbitration agreement implies either that his attorney did not have 

Ramirez review the arbitration agreement in Queen Mining’s moving papers before 

signing the declaration or that Ramirez did review the arbitration agreement but, due to a 

poor memory or some other reason, he could not recall it by the time he signed the 

declaration. 
17.

“HANDBOOK ACKNOWLEDGEMENT.” His declaration does not assert the signature 

on that document is not his and, furthermore, does not even state that he cannot recall 

signing that particular document. Consequently, we conclude Ramirez, like the plaintiffs 

in Iyere, has offered no admissible evidence creating a dispute as to the authenticity of the 

handwritten signature on the acknowledgement. (See Iyere, 87 Cal.App.5th at pp. 756–

757.)

We next evaluate whether the evidence offered by Ramirez creates a factual 

dispute about whether the parties formed an enforceable contract to arbitrate their 

employment-related disputes. As concluded by the First District, the inability to recall 

signing a document does not “afford[] an independent basis to find that a contract was not 

formed.” (Iyere, supra, 87 Cal.App.5th at p. 758.) 

Consequently, the burden of producing evidence never shifted back to Queen 

Mining. Based on Ramirez’s failure to carry his second step burden, the trial court 

should never have reached the third step in the burden-shifting framework. After 

concluding an arbitration agreement existed, the trial court should have addressed 

whether Ramirez had proven by a preponderance of the evidence that the agreement was 

unconscionable and, thus, not enforceable. (See Nielsen Contracting, Inc. v. Applied 

Underwriters, Inc., supra, 22 Cal.App.5th at p. 1106 [party opposing arbitration bears the 

burden of proving by a preponderance of the evidence any defense to the agreement’s 

enforcement].)

II. REMAND FOR FURTHER PROCEEDINGS

Ordinarily, a trial court is required to rule on the gateway issues of whether an 

arbitration agreement is enforceable, which includes claims of unconscionability. 

(Balandran v. Labor Ready, Inc. (2004) 124 Cal.App.4th 1522, 1530.) Here, the trial 

court did not reach Ramirez’s unconscionability defense and, therefore, it is appropriate 

to remand for further proceedings addressing that defense. (Ibid.) 
18.

DISPOSITION

The order denying the motion to compel arbitration is reversed. The matter is 

remanded to the trial court for further proceedings not inconsistent with this opinion.

In the interests of justice, the parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278(a)(5); see Cal. Rules of Court, rule 8.100(g).) 

FRANSON, J.

WE CONCUR:

LEVY, Acting P. J.

POOCHIGIAN, J.