Filed 2/2/24; Certified for Publication 2/26/24 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MARY ANN JONES,

Plaintiff and Respondent,

v.

SOLGEN CONSTRUCTION, LLC et al.,

Defendants and Appellants.

F085918

(Fresno Super. Ct. 

No. 22CECG01590)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Kristi C. 

Kapetan, Judge.

Best Best & Krieger, Damian Moos, and Adriana Castro for Defendant and 

Appellant, Solgen Construction, LLC.

Boutin Jones, Michael E. Chase, and Ian K. McGlone, for Defendant and 

Appellant, GoodLeap, LLC.

Kemnitzer, Barron & Krieg, Kristin Kemnitzer, Adam McNeile, and Malachi J. 

Haswell; Housing and Economic Rights Advocates and Natasha Blazer for Plaintiff and 

Respondent.

-ooOoo-
2. 

 This case arises out of a business relationship between respondent Maryann Jones 

and appellants Solgen Construction, LLC (“Solgen”) and GoodLeap, LLC (“GoodLeap”) 

(or collectively “appellants”) involving the installation of home solar panels. The trial 

court denied Solgen’s and GoodLeap’s separate motions to compel arbitration. 

Appellants appeal the denial and contend that the trial court erred by: (1) concluding that 

no valid agreement to arbitrate existed or that appellants failed to meet their burden of 

demonstrating the existence of a valid arbitration agreement; (2) imposing improper 

burdens on appellants with respect to demonstrating the existence of an agreement to 

arbitrate; (3) failing to consider evidence that was properly presented as part of a reply; 

(4) improperly considering hearsay evidence; (5) failing to hold an evidentiary hearing; 

and (6) holding that Solgen’s contract was unenforceable as unconscionable. We affirm. 

PROCEDURAL BACKGROUND

 On May 19, 2022, Jones filed a lawsuit in the Fresno County Superior Court 

against appellants. Jones alleged claims for fraudulent misrepresentation, fraudulent 

concealment, negligence, the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.), 

the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et. seq.), elder abuse 

(Welf. & Inst. Code, § 15610.07 et seq.), the Home Solicitations Sales Act (Civ. Code, 

§ 1689.5 et seq.), Business and Professions Code section 7150 et seq. regarding home 

improvement contracts, and unfair competition (Bus. & Profs. Code, § 17200 et seq.). 

 On September 6, 2022, and October 21, 2022, appellants separately moved to 

compel arbitration. 

 Oral argument on the motions to compel was held on February 28, 2023, and the 

trial court issued its final ruling on March 2, 2023. The court adopted a prior tentative 

ruling without changes. In relevant part, the court held that appellants had failed to meet 

their burden to show that an arbitration agreement with Jones existed. 

 On March 10 and March 16, 2023, appellants appealed.
3. 

FACTUAL BACKGROUND 

 Solgen is in the business of selling and installing home solar energy systems. 

Solgen employs sales agents to go door to door and attempt to make sales of home solar 

energy systems. GoodLeap works with Solgen to provide loans for Solgen’s customers. 

Solgen’s sales representatives help customers obtain loans from GoodLeap. 

In March 2022, Andre Ware was a Solgen salesman who visited Jones several 

times regarding home solar. At the times Ware met with Jones, she was 81 years old and 

lived on Social Security payments of less than $1,000 per month. As a result of Ware’s 

interactions with Jones, a contract for the installation of a home solar energy system with 

Solgen and a 25-year loan contract for $52,564.28 with GoodLeap were created. Both 

contracts bear what purports to be Jones’s electronic signature and contain arbitration 

clauses. The parties vigorously dispute the facts that led to the creation of these two 

electronically signed contracts. 

Jones’s Version of Events

 According to Jones’s declaration, Ware arrived at her house and said that he was 

offering a free government program that would help low-income consumers get solar 

energy. Ware stated that the program was affiliated with PG&E. Ware came to Jones’s 

home three times and each time explained that he was offering a government program. 

Jones asked Ware many times if she would have to pay anything for the program he was 

offering. Ware would reply that Jones would not pay anything and that the program was 

meant to lower Jones’s PG&E bill to about $170 per month. Ware explained that just a 

few solar panels would need to be installed on the roof, but Jones would not have to pay 

for the panels. 

 On Ware’s third visit, Ware kept turning his cell phone and electronic tablet on 

and off. Ware asked for Jones’s Social Security number, identification, monthly income, 

and e-mail address. Jones does not know her e-mail address or how to access e-mail on 

her cell phone. Ware asked to see Jones’s cell phone to try and find her e-mail address. 
4.

Eventually, Ware asked Jones to put her finger on his electronic tablet. Ware did not say 

that Jones would be signing any documents, and Jones did not know that she was signing 

any. Ware did not explain to Jones that she would be signing a contract, entering a loan 

for solar panels separate from the PG&E program for low-income consumers, or 

financing solar panels separately from the PG&E program. After Ware had pressed 

Jones’s finger to the electronic tablet, Ware left and gave Jones no paperwork. Jones

could not have afforded solar panels if she had been told that she would have to get a loan 

to pay for them.

A few days after Ware left, workers came to Jones’s home and installed solar 

panels. Jones also started receiving calls from GoodLeap even though she had never 

heard of GoodLeap. When Jones returned the calls, GoodLeap informed her that she had 

signed and was responsible for a 25-year loan. Jones was shocked and panicked, in part 

because she would be 106 years old before the loan would be paid off. Jones stated that 

she believed that Ware was offering a government program. GoodLeap said that they 

would investigate the matter.

On March 31, 2022, GoodLeap called Jones. Jones again explained that she did 

not sign up for a loan with GoodLeap, but instead believed that she was being offered a 

government program to lower her utility bill. Jones asked her grandson to help her check 

her e-mail because she does not know how to do so on her own. Jones’s grandson found 

e-mails from GoodLeap, but he was unable to open the expired links. Jones did not know 

any e-mails from GoodLeap were in her e-mail’s inbox, was not informed that e-mails 

would be coming, and would not have known what to do even if she had been informed 

that e-mails were coming. Jones never would have signed anything or signed a contract 

with GoodLeap because she never agreed to a GoodLeap loan.
5.

In April 2022, Solgen e-mailed Jones a copy of the contract at her request. The 

contract stated that the total cost of the solar system was $52,564.28. The contract 

indicated it was electronically signed by Jones, but Jones never saw or signed the 

contract, and none of the contract’s terms were ever explained to her. The contract 

indicates that “Joshua Burns” was signor and sales agent for Solgen, even though Jones 

had never heard of Burns. The contract also had a DocuSign1 page that listed Jones’s email address as “yoursolarguyjosh@....” Because that was not Jones’s e-mail address, 

she had not received a copy of the contract earlier.

Appellants’ Version of Events

According to two declarations by Ware, he met Jones at her home in March 2022, 

and explained some of the benefits of installing solar panels. Jones expressed an interest 

in going solar, so Ware returned the next day.

When Ware returned, he explained in detail the solar programs in the state, how 

the programs work, and how Jones could qualify for solar installation. Ware never stated 

that Jones would be getting solar panels for free or as part of a government program. 

Ware explained that the solar panels would be financed pursuant to a loan. Ware 

contacted GoodLeap, and GoodLeap e-mailed a loan agreement to Jones at Jones’s 

personal e-mail address. The loan agreement was to be executed via DocuSign. Jones 

opened the GoodLeap loan agreement on her mobile phone. Ware went over the loan 

agreement with Jones and explained the terms of the loan, including the loan’s length, 

interest rate, monthly payments, and total cost. Ware also explained that Jones would 

receive a tax credit for the solar panels and that if she applied that credit, her monthly 

payments would remain the same and not increase after 18 months. Ware also informed 

Jones that the monthly payments would be automatically debited (auto debit) from her 

bank account, and Jones indicated she did not want that. 

1 “DocuSign” is a service that permits individuals to securely and electronically 

generate, send, sign, and retain documents.
6.

Ware explained that if auto debit was not used, her APR would increase by 0.50

percent and that her monthly payment would increase by about $10 to $177 per month. 

Jones said that was acceptable. Ware then unsuccessfully attempted to opt Jones out of 

auto debit. Ware and Jones stopped executing the loan agreement, and Ware called 

GoodLeap. Ware identified himself as “Joshua Burns,” Ware’s supervisor. After Ware 

explained the purpose of the call to GoodLeap, he handed the phone to Jones. Jones 

spoke to GoodLeap and opted out of auto debit. After Jones opted out of auto debit, 

GoodLeap sent a new loan agreement to Jones’s e-mail. Jones opened the second loan 

agreement on her cell phone and then executed the loan agreement via DocuSign. After 

Jones electronically signed the second loan agreement, a fully executed copy of the 

agreement was e-mailed to Jones at her personal e-mail. Ware spent approximately one 

hour with Jones going over the terms of the loan.

With respect to the installation contract with Solgen, Ware had a practice of 

mailing such contracts to a Solgen e-mail address instead of the customer’s address out of 

concerns for privacy and identity theft. Ware explained this procedure, and Jones 

acquiesced. Ware had the installation contract sent to “yoursolarguyjosh@...”, a Solgen 

e-mail address. The e-mail contained a DocuSign link so that Jones could electronically 

sign the installation contract. When the installation contract arrived at the Solgen e-mail 

address, Ware opened the e-mail on his tablet, gave the tablet to Jones, and asked Jones if 

she had any questions. Jones said that she did not and then she quickly clicked through 

the signatures on DocuSign on Ware’s tablet. Ware did not misrepresent the content of 

the installation contract, did not pressure Jones, and did not sign for Jones. After Jones 

electronically signed the installation contract, Ware recorded a video of Jones regarding 

the transactions.
7.

March 17, 2022 Call to GoodLeap

There is an audio recording of the call that Ware made to opt Jones out of auto 

debit. The recording reflects that Ware identified himself as Joshua Burns. The 

recording indicates that GoodLeap representative “Linda” said that she was on a recorded 

line “for GoodLeap.” The recording includes Linda telling Jones that the APR would rise 

from 1.99 percent to 2.49 percent without the auto debit and that the payment would rise 

from about $167 to $177. Jones responded, “So I would have to pay a little bit more?” 

Linda responded affirmatively, and Jones said that would be fine. There were often 

noticeable pauses between Linda’s questions and Jones’s responses.

Video of Jones

Ware recorded a one-minute and 25-second video of Jones. In the video, Jones 

provided general information, as well as her e-mail address. While giving her e-mail 

address, it appeared as though Jones was reading, she paused while reading, incorrectly 

added a zero to her e-mail address, and then ended the e-mail address by saying “com” 

instead of “dot com.” Ware asked Jones if she understood that “this is a 25-year 

agreement,” that her “interest is at 2.99%,” that she “will pay $177 for the first 

18 months,” that she “will pay $177 after 18 months if [she] applie[s] the tax credit,” that 

her “system size is 9.5 kilowatts,” and that her “total payout after 25 years is fifty-two 

thousand.” Jones responded “yes” to each question. After she answered the “payout” 

question, Jones looked at Ware and furrowed her brow. Ware then asked how Jones’s 

experience was, and Jones responded, “very good.”

March 30, 2022 Call to GoodLeap2

On March 30, 2022, Jones returned calls from GoodLeap. A recording of Jones’s 

call, in relevant part, reflects that Jones spoke with “Bethany” and told Bethany that she 

called GoodLeap because it had been calling her to “explain my loan.” After Bethany 

2 This call lasted about 14 minutes. In the interest of brevity, we summarize the 

relevant aspects of the call.
8.

asked if Jones understood that the loan had a 25-year term, Jones responded that she did 

“not understand [Bethany] calling it a loan” because Jones believed she was participating 

in a government program. Bethany stated that this was incorrect, and that Jones would be 

paying $177.34 per month on the loan. Jones replied that she believed that her PG&E bill 

would be $177 per month. Bethany stated that she needed to file a report and that 

GoodLeap would need to investigate. When Bethany told Jones that the loan was for 

$52,564.28, Jones responded quickly and in a surprised voice. When asked if Jones 

remembered signing anything, she said she remembered signing “something” but that she 

could not read what she was signing because it was on a small phone. Jones again 

confirmed she believed she was in a government incentive that would lock in her PG&E 

payment for $177. Jones also stated that no one told her she was getting a loan or would 

have an interest rate and she could not afford another payment.

March 31, 2022 Call to Jones3

On March 31, 2022, Jones received a follow up call from GoodLeap and spoke to 

“Gabby.” A recording of the call, in relevant part, reflects that Gabby understood that 

Jones had “hesitations” about the loan agreement. Jones replied that she had “all kinds of 

hesitations,” and she did not understand who the company was, what the name of the 

company was, and that she was over 80-years old and would not be taking out any loans 

when she only receives small Social Security checks. Gabby stated that Jones selected 

financing to pay for the panels, and Jones interrupted that she did not select financing. 

Jones said that the salesman informed her that she would be participating in a government 

program. Gabby asked if Jones remembered taking a video with the salesman, and Jones 

said that she did not take a video. Gabby then stated that she had the video and began 

describing the video’s contents. Gabby said that the salesman said the interest rate was 

1.99 percent, but Jones said that the salesman said that the rate was 2.9 percent because 

3 This call lasted about 12 minutes. In the interest of brevity, we summarize the 

relevant aspects of the call. 
9. 

there was no auto debit. Gabby also discussed that Jones’s monthly payment would rise 

to $241 after 18 months if the tax credit was not used. Jones expressed her surprise about 

this information and stated that she had never heard that before. Jones stated that the 

salesman said that he was offering a government program, he pulled up her e-mail 

address on her phone because she did not know how to do that, and she did not agree to a 

loan. 

April 18, 2022 Call to Solgen

 On April 18, 2022, Jones called Solgen. A recording of the call reflects that Jones 

said she wanted to get a copy of the “contract that I signed with your company.” The 

Solgen representative e-mailed a copy of the installation contract to Jones’s e-mail. 

When asked if she had received the contract, Jones asked the Solgen employee to wait. 

Jones then asked her daughter for help accessing e-mail on her cell phone so that she 

could see if the contract had arrived. Jones and her daughter can be heard trying to figure 

out how to access Jones’s e-mail on Jones’s cell phone. Jones’s daughter can be heard 

asking Jones how to check e-mail from Jones’s phone, and Jones responded that she did 

not know how. After about three minutes, Jones’s daughter figured out how to access the 

e-mail and confirmed that the document had been received. 

DISCUSSION

I. Hearsay Evidence

A. Parties’ Arguments

 Solgen argues that the trial court erroneously relied on inadmissible hearsay from 

a DocuSign document when it denied the motions to compel. Because no evidence was 

proffered regarding the preparation of the DocuSign document or the accuracy and 

reliability of the document, the document does not meet the hearsay exception of Rule of 

Evidence 1271. Jones does not specifically address this objection. We disagree with 

Solgen that the trial court erred. 
10.

B. Additional Background

In denying the motions to compel, the trial court found, among other things, that 

Jones reviewed and signed GoodLeap’s 21-page loan agreement in 38 seconds. The 38-

second figure was derived from DocuSign documents submitted by GoodLeap. 

Specifically, a DocuSign certificate shows that the loan agreement was viewed at 3:48:36 

p.m. and fully executed at 3:49:14 p.m. Solgen objected at the hearing that this 38-

seconds figure was not sufficiently authenticated, accurate, or exempted from the hearsay 

rule. The court did not expressly rule on or address Solgen’s hearsay objection. 

C. Legal Standard

A trial court’s evidentiary ruling is reviewed for abuse of discretion. (People v. 

Flores (2020) 9 Cal.5th 371, 409; Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 

1021.) A trial court abuses its discretion if its ruling exceeds “ ‘ “the bounds of reason, 

all of the circumstances before it being considered.” ’ ” (Daniel v. Wayans (2017) 

8 Cal.App.5th 367, 393–394; Maughan v. Google Technology, Inc. (2006) 

143 Cal.App.4th 1242, 1249.) “ ‘ “A decision will not be reversed merely because 

reasonable people might disagree.” ’ ” (Maughan, at p. 1249.) 

Evidence Code section 1271 excepts from the hearsay rule certain business 

records. (Evid. Code, § 1271 (“section 1271”); see People v. Hovarter (2008) 44 Cal.4th 

983, 1010–1011 (Hovarter); Conservatorship of S.A. (2018) 25 Cal.App.5th 438, 447

(S.A.).) To meet the business records exception, the proponent of the evidence must 

establish that: (1) the writing was made in the regular course of business; (2) the writing 

was made at or near the time of the act, condition, or event; (3) the custodian or other 

qualified witness testifies to its identity and the mode of its preparation; and (4) the 

sources of information and mode and method and time of preparation indicate 

trustworthiness. (Evid. Code, § 1271; Hovarter, at pp. 1010–1011; S.A., at p. 447.) The 

trial court has broad discretion in determining whether the proponent has laid the 

appropriate foundation under section 1271. (Hovarter, at pp. 1010–1011; S.A., at p. 447.) 
11.

D. Analysis

The issue is whether the viewing-time and signing-time information contained in 

the DocuSign certificate meets the business record hearsay exception of section 1271. 

Viewing this issue through the prism of the deferential abuse of discretion standard, we

detect no error by the trial court. 

In support of its motion to compel arbitration, GoodLeap submitted the declaration 

of its chief revenue officer and custodian of records, Matt Dawson. The information in 

Dawson’s declaration meets each of the four foundational requirements of section 1271. 

Dawson’s declaration shows that GoodLeap regularly creates and maintains loan 

agreements. According to Dawson, loans are signed at the time borrowers consummate 

the loan, and GoodLeap’s loan agreements are executed by borrowers using DocuSign, 

and DocuSign complies with 15 U.S.C. section 7001.4 Dawson explains that it is 

GoodLeap’s practice to use DocuSign because it is best-in-class, cloud based, encrypted, 

and provides a secure digital audit trail. For each loan agreement, DocuSign assigns a 

secure and unique envelope-code, sends the loan agreement to the borrower at the 

borrower’s e-mail address, and generates an encrypted certificate of completion, which 

includes the date and time the agreement was viewed and signed by the borrower, once 

the borrower signs the loan agreement. The certificate is sent to the borrowers and 

GoodLeap, and GoodLeap retains the certificates.

In a nutshell, GoodLeap routinely utilizes DocuSign to enter into and store loan 

agreements, and the DocuSign program securely sends documents to a borrower’s e-mail 

address, creates a reliable electronic audit trail that tracks and records the times in which 

documents are viewed and signed, and sends a certificate of completion that includes 

viewing and signing times to both the borrower and GoodLeap shortly after signing. 

4 15 U.S.C. section 7001 is part of the Electronic Signatures in Global and 

National Commerce Act (Campbell v. General Dynamics Government Systems Corp.

(1st Cir. 2005) 407 F.3d 546, 556), sometimes referred to as the “E-Sign Act.” (Lavallee 

v. Med-1 Sols., LLC (7th Cir. 2019) 932 F.3d 1049, 1056.) 
12.

GoodLeap’s regular use of, and dependency on, DocuSign, and Dawson’s description of 

what DocuSign does for each GoodLeap contract, is sufficient to show the DocuSign 

document is trustworthy. Considering the wide discretion possessed by the trial court, 

Dawson’s declaration meets the requirements of section 1271. (Evid. Code, § 1271; 

Hovarter, supra, 44 Cal.4th at pp. 1010–1011; S.A., supra, 25 Cal.App.5th at p. 447.) 

Therefore, the trial court did not act “ ‘ “beyond the bounds of reason” ’ ” (Daniel v. 

Wayans, supra, 8 Cal.App.5th at pp. 393–394), and thus did not abuse its discretion with 

the respect to the 38-second figure derived from the DocuSign certificate. 

II. Consideration of Reply Evidence

A. Parties’ Arguments

Solgen argues that the trial court erroneously failed to consider the April 2022 

recording. Solgen avers the recording was properly submitted in reply, as opposed to its 

motion, because the recording responds to arguments made in Jones’s opposition. Jones 

argues in part that Solgen has not shown error because there is no evidence that the trial 

court failed to consider the recording. We agree with Jones.

B. Additional Background

During the hearing on the motions to compel arbitration, the trial court and 

Solgen’s counsel discussed the April 2022 recording being submitted as part of the reply:

“Solgen: No, your Honor. Because it was filed in reply to the 

evidence or the argument that was provided by the opposing party.

“THE COURT: But it was new evidence – it is new evidence 

that you submitted on reply.

“[SOLGEN:] It is new evidence we submitted on reply in 

response to the opposition.

“THE COURT: Okay. Well, I know it’s in response. It’s a 

reply. I do understand that.

“[SOLGEN:] ... But again, the evidence was submitted in 

response to specific evidence provided by the other side. And in that 
13.

respect, I don’t believe it’s improper for the Court to consider it, especially 

when it’s an admission from the party claiming she never signed the 

agreement to have a recording of her say, “I want the agreement that I 

signed.”

“THE COURT: Okay.

“[SOLGEN:] Turning to the issue – I’m sorry, what was that, 

your Honor?

“THE COURT: I understand what you are talking about. So 

now you’re going to argue from that declaration, or what?”

C. Legal Standard

“An order is presumed correct; all intendments are indulged in to support it on 

matters as to which the record is silent, and error must be affirmatively shown.” 

(Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321; see Wolstoncroft v. County of 

Yolo (2021) 68 Cal.App.5th 327, 347.) Thus, “ ‘[i]n the absence of a contrary showing in 

the record, all presumptions in favor of the trial court’s action will be made by the 

appellate court.’ ” (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) This includes 

resolving any ambiguities in favor of affirmance. (In re Eli B. (2022) 73 Cal.App.5th 

1061, 1069 (Eli B.); Keep Our Mountains Quiet v. County of Santa Clara (2015) 

236 Cal.App.4th 714, 740–741 (Keep Our Mountains Quiet).) “Only ‘[w]hen the record 

clearly demonstrates what the trial court did’ will the reviewing court ‘not presume it did 

something different.’ ” (Eli B., at p. 1069; see also People v. Rogers (2006) 39 Cal.4th 

826, 910.) 

D. Analysis

Solgen’s argument relies on the trial court’s statements during the motions to 

compel hearing and the court’s failure to mention the April 2022 recording in the order 

denying arbitration. Solgen’s argument is infirm.

First, the trial court never held that the reply recording was inadmissible or would 

not be considered. To the contrary, the court asked about the submission of the recoding 

being part of the reply, as opposed to being part of the moving papers. After discussion, 
14.

the court indicated it understood that the recording was submitted in response to Jones’s 

opposition and inquired as to how Solgen intended to rely on the recording. This 

exchange can easily be read as the court both seeking to understand why Solgen 

submitted the recording as part of the reply and then, after explanation from Solgen, 

considering Solgen’s arguments that were based on the recording. At best, the exchange 

is ambiguous. However, since ambiguities are resolved in favor of affirmance, we 

construe the exchange as showing that the court considered and did not exclude the April 

2022 recording. (Eli B., supra, 73 Cal.App.5th at p. 1069; Keep Our Mountains Quiet, 

supra, 236 Cal.App.4th at pp. 740–741.)

Second, the order’s silence regarding the recording does not help Solgen. Trial 

courts are “not required to mention every arguably pertinent item of evidence before it, 

let alone explain in minute detail its view of each item.” (Yield Dynamics, Inc. v. TEA 

Systems Corp. (2007) 154 Cal.App.4th 547, 565.) Moreover, the appellate presumptions 

are in favor of the trial court’s actions if there is a silent record. (Jameson v. Desta, 

supra, 5 Cal.5th at p. 608; Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 321.) 

Solgen has not rebutted those presumptions. Therefore, we presume that the trial court 

considered Solgen’s reply recording.

In sum, the record does not show that the April 2022 recording was excluded. 

III. Denial of Arbitration

A. Parties’ Arguments

1. GoodLeap

GoodLeap argues that the evidence established that Jones signed the loan contract. 

The DocuSign certificate shows Jones electronically signed the loan and received a copy 

of the signed loan at her personal e-mail, both on March 17, 2022. The loan contract 

contains a broad arbitration clause that covers all claims alleged by Jones. Considering 

her representations on the video and the recording of her successfully opting out of auto 
15.

debits, Jones did not sufficiently establish fraud. Therefore, the trial court’s decision is 

not supported by substantial evidence. 

2. Solgen

Solgen argues that, through a de novo review of the issue, the declaration of Ware 

and the video and audio recordings of Jones established that the parties entered into an 

agreement to arbitrate. Solgen also argues that the trial court misinterpreted Ruiz v. Moss 

Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, to impose a higher standard of proof 

regarding electronic signatures and also improperly imposed a requirement for Ware to 

point out the arbitration provision, which is contrary to law.

3. Jones

With respect to GoodLeap, Jones argues that the trial court correctly concluded 

that GoodLeap failed to establish both the existence of an arbitration agreement and that 

Jones electronically signed the loan agreement. In addition to the express findings of the 

court, other evidence presented to the court, such as Jones’s low monthly income, her 

inability to access e-mail on her cell phone without help, the omission of key facts or 

terms in the video taken by Ware, Jones’s shock and surprise during conversations with 

GoodLeap, and Ware having access to Jones’s cell phone, all support the contention that 

Jones did not sign the loan contract.

With respect to Solgen, Jones argues that the trial court’s decision in denying the 

motion to compel is reviewed, not the reasoning behind that decision, and that the review 

is for clear error, not de novo. The court’s conclusion that Solgen did not prove the 

existence of an arbitration agreement was not erroneous as a matter of law. Facts such as 

Ware intentionally sending the contract to a Solgen e-mail, DocuSign documents 

showing that the contract was signed in 27 seconds, and Solgen failing to send the 

contract (either physically or electronically) to Jones at the time of signing all support the 

conclusion that Solgen did not meet its burden. Additionally, Jones argues that the court 
16.

did not err by relying on Ruiz v. Moss Bros. Group, supra, 232 Cal.App.4th 836, and the 

court’s reference to Jones’s awareness of the arbitration agreement was immaterial. 

We agree with Jones that the trial court’s order is adequately supported.

B. Additional Background 

On March 3, 2023, the trial court formally adopted its tentative ruling and denied 

appellants’ separate motions to compel. Under the “Agreement to Arbitrate” section of 

the order, the court described the applicable law and some aspects of the parties’ 

submitted evidence. In relevant part, the court wrote:

“According to Ware, plaintiff indicated she did not want her 

payments auto debited, so execution of the loan documents was paused to 

allow Ware to contact GoodLeap by telephone. During the telephone call, 

Ware admits he impersonated his supervisor to confirm that auto debit 

would not be applied to plaintiff’s agreement. A second set of loan 

documents were emailed to plaintiff. Ware also explains his practice –

purportedly due to privacy concerns – of emailing ‘Solgen installation 

documents to a company email address instead of the customer’s email 

address.’ When he received the link on his tablet, he handed the tablet to 

plaintiff, who he witnessed ‘quickly click[] through the signatures on 

DocuSign.’ After the documents were signed, Ware ‘recorded a video of 

plaintiff acknowledging her understanding of the material terms of the loan 

and the documents she signed.’

“Plaintiff contends her signature on the purported arbitration was 

‘forged,’ and therefore invalid and unenforceable. Plaintiff claims that, 

despite her ‘virtually non-existent technology skills,’ Mr. Ware ... asked 

plaintiff to ‘touch his tablet, but never said that she was signing a contract 

or requesting a loan.’ Plaintiff also notes that DocuSign certificate 

presented by GoodLeap shows that the entire DocuSign procedure 

transpired over the course of [38 seconds]. Plaintiff contends that she could 

not have intelligently considered the 21-page Loan Agreement and 

executed the thirteen signature lines within such a limited time.

“Although plaintiff challenges the general validity and enforceability 

of the loan agreement on various theories, on the specific subject of these 

motions – plaintiff’s acceptance of the arbitration agreement – neither 

Ware’s declaration nor the video address arbitration or whether that section 

of the agreement was brought to plaintiff’s attention during her 38 second 

review of the 21-page loan agreement. Furthermore, Ware’s admitted 
17.

impersonation of a supervisor and practice of sending the loan agreement to 

a company email address instead of the customer’s, tends to detract from 

the uniqueness and autonomy typically sufficient to authenticate an 

electronically signed arbitration agreement.

“Consequently, defendant’s evidence is insufficient to meet its 

burden of showing by a preponderance of the evidence that the signature on 

the agreement is plaintiff’s. (Citations omitted.)

“Therefore, defendants have not shown an agreement to arbitrate.” 

(Citations omitted.)

Under a section entitled “Procedural Unconscionability,” the court made the 

following relevant findings:

“Plaintiff’s age, income, and unfamiliarity with technology is not 

disputed by any defendant. Nevertheless, defendants’ own evidence 

asserted in support of their motions indicate that the solar installation 

agreement involved multiple sets of loan documents, numerous information 

materials, and a compelling total of $52,564. The alleged transaction was 

also the product of repeated solicitations at plaintiff’s residence. 

Furthermore, the installation documents do not explain arbitration or its 

consequences.

“As discussed above, both defendants premise their motions on 

Ware’s video recording and the security measures attendant to the 

DocuSign process. However, Ware does not identify himself in the video, 

there is no date and time indicated, and there are no other details from 

which it can be inferred where in the transaction the video occurred. 

Additionally, the video does not mention arbitration and there is conflicting 

evidence whether the loan agreement(s) were actually provided 

autonomously to plaintiff.

“The existence of the arbitration agreement inconspicuously 

contained within a multitude of other documents, presented electronically 

to an elder adult with undisputed unfamiliarity with technology, 

demonstrates unequal negotiating power and an absence of a meaningful 

opportunity to review the arbitration terms. In addition, the uncertain 

context of the video and Ware’s impersonation of his supervisor to 

implement material modifications of the loan terms, tends to demonstrate 

noncompliance with procedural safeguards.” (Citations omitted.)
18.

C. Legal Standard

Arbitration is a favored procedure under both Federal and California law. 

(Marmet Health Care Center, Inc. v. Brown (2012) 565 U.S. 530, 533; OTO, L.L.C. v. 

Kho (2019) 8 Cal.5th 111, 125.) However, before a court may order the parties to 

arbitration, the court must determine the threshold question of whether a valid agreement 

to arbitrate exists. (Casa Del Caffe Vergnano S.P.A. v. Italflavors San Diego, LLC (9th 

Cir. 2016) 816 F.3d 1208, 1211; Avila v. Southern California Specialty Care, Inc. (2018) 

20 Cal.App.5th 835, 843–844 (Avila).) The party seeking to compel arbitration bears the 

burden of establishing a valid agreement to arbitrate by a preponderance of the evidence, 

while the party opposing arbitration bears the burden of establishing any necessary facts 

in defense by a preponderance of the evidence. (See Engalla v. Permanente Medical 

Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal v. Great Western Fin. Securities Corp.

(1996) 14 Cal.4th 394, 414 (Rosenthal); Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 

747, 755; Trinity v. Life Ins. Co. of N. Am. (2022) 78 Cal.App.5th 1111, 1120.)

When a trial court’s order denying arbitration is based on the finding that the 

appellant failed to carry its burden of proof, the question on appeal is whether that finding 

is erroneous as a matter of law. (Evenskaas v. California Transit, Inc. (2022) 

81 Cal.App.5th 285, 292; Trinity v. Life Ins. Co. of North America, supra, 78 Cal.App.5th 

at p. 1121; Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066.) 

“ ‘Specifically, the question becomes whether the 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.” ’ ” 

(Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978–979; see Evenskaas, 

at p. 292; Trinity, at p. 1121.) In other words, the appellant must show that his evidence 

compelled a finding that he met his burden of proof as a matter of law. (See Ajaxo, Inc. 

v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 163–164; Fabian, at p. 1070; 

Juen, at pp. 978–979.) Unless the trial court makes specific findings of fact in favor of 
19.

the losing party, reviewing courts presume that the trial court found the losing party’s 

evidence lacked sufficient weight and credibility to carry the burden of proof. (Fabian, at 

p. 1067; Bookout v. State of California ex rel. Dept. of Transportation (2010) 

186 Cal.App.4th 1478, 1486.) The reviewing court must not judge the credibility of 

witnesses or reweigh the evidence, must view all factual matters most favorably to the 

reviewing party, and must resolve all conflicts in favor of the prevailing party. (Fabian, 

at p. 1067; see Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 

Cal.App.4th 828, 838.) “[T]he trial court’s judgment is presumed correct ... , with ‘all 

intendements and presumptions in favor of its correctness.’ ” (Ajaxo, at p. 164.)

D. Analysis

1. Standard of Review

GoodLeap contends that the appropriate standard of review is one of substantial 

evidence. When a motion to compel arbitration is based on a decision of fact, the review 

is one of substantial evidence. (Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th 

at p. 1066.) However, when the decision is based on a failure of a party to meet its 

burden of proof, it is “misleading” to say that the review is for substantial evidence. 

(Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 

456, 465; see also Fabian, at p. 1066.) Instead, the standard of review is the erroneous as 

a matter of law standard. (Fabian, at pp. 1066–1067.) Here, the trial court expressly 

held that appellants failed to meet their burden by a preponderance of the evidence. 

Therefore, the appropriate standard of review is the erroneous as a matter of law standard. 

(Ibid.) 

Solgen contends that the appropriate standard of review is de novo. Solgen cites 

four appellate court decisions that have held, if the “conflicting evidence is entirely 

written, a reviewing court is not bound by the finding of the trial court, but instead

subjects the contract to independent review.” Despite the holdings of these cases, we 

conclude that the appropriate standard remains the standard we set forth above.
20.

Solgen cites Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 

1659, 1663, and three other cases that cite to and depend on Patterson.

5 Patterson relied 

solely on Milazo v. Gulf Ins. Co. (1990) 224 Cal.App.3d 1528, 1534, and Milazo, in turn, 

relied on Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 529 and 

Estate of Shannon (1965) 231 Cal.App.2d 886, 890–891. Ultimately, it is Coopers & 

Lybrand and Estate of Shannon that are the source of the “Patterson/Milazo rule” that a 

reviewing court conducts a de novo review of a trial court’s order/findings that are based 

solely on written evidence. However, Coopers & Lybrand did not hold that a reviewing 

court may disregard the findings and determinations of a trial court when those findings 

and determinations are based only on written evidence. (Coopers & Lybrand, at p. 529.) 

Rather, Coopers & Lybrand simply stated the rule that interpretation of a contract is a 

question of law “unless the interpretation turns upon the credibility of extrinsic 

evidence.” (Ibid.) Coopers & Lybrand does not support the “Patterson/Milazo rule.” 

Similarly, Estate of Shannon hypothesized: “But where only the interpretation of written 

instruments is concerned, unaffected by extrinsic evidence, is not an appellate court, after 

studying the briefs on appeal, listening to the arguments of counsel, and thereafter 

engaging in a full discussion of the problem among the justices, in a more adequately 

informed position than is the trial judge and therefore better able to interpret the intent of 

the parties?” (Estate of Shannon, at p. 890.) Estate of Shannon cited no authority in 

support of its point and then expressly stated that the facts of the case did not involve any 

issues about extrinsic evidence. (Id. at p. 891). In other words, Estate of Shannon’s key 

language is dicta. Therefore, the “Patterson/Milazo rule” is based on one case that does 

not actually support the rule and on another case whose relevant language is unsupported 

dicta. The “Patterson/Milazo rule” is simply inadequately supported.

5 These three cases are: In re Tobacco Cases I (2004), 124 Cal.App.4th 1095, 

1105; Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co.

(1998) 68 Cal.App.4th 83, 89; and Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 

1369.
21.

Additionally, the “Patterson/Milazo rule” is contrary to established authority. Our 

Supreme Court has held that a trial court’s judgment or order receives the same deference 

whether it is based on declarations and written evidence or based on oral testimony. 

(People v. Vivar (2021) 11 Cal.5th 510, 528, fn. 7; Haraguchi v. Superior Court (2008) 

43 Cal.4th 706, 711, fn. 3; Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [“Even though 

contrary findings could have been made, an appellate court should defer to the factual 

determinations made by the trial court when the evidence is in conflict. This is true 

whether the trial court’s ruling is based on oral testimony or declarations” (fn. omitted)]; 

Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 507–508; see also 

Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 868, fn. 1.) 

It is this authority, not Patterson and Milazo, that determines how an appellate court 

reviews the orders of a trial court that are based on written materials or declarations.

Finally, even if the “Patterson/Milazo rule” was adequately supported and not 

contrary to binding authority, the evidence in this case does not involve extrinsic 

evidence that consists solely of written evidence. The parties submitted four audio 

recordings and one video recording, each of which required the consideration and 

interpretation of the trial court. Thus, this case does not fit within the plain language of 

the “Patterson/Milazo rule.”

For these reasons, we reject Solgen’s arguments that the applicable standard of 

review in this matter is de novo. 

2. Failure to Meet Burden of Proof

To prevail, appellants must show that the trial court’s conclusion that they failed to 

meet their burden of proof was erroneous as a matter of law. (Evenskaas v. California 

Transit, Inc., supra, 81 Cal.App.5th at p. 292; Victaulic Co. v. American Home Assurance 

Co. (2022) 80 Cal.App.5th 485, 505; Trinity v. Life Ins. Co. of North America, supra, 

78 Cal.App.5th at p. 1121; Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at 

p. 1067; Juen v. Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th at pp. 978–979.) Some 
22.

courts maintain that if “ ‘ “the judgment is against the party who has the burden of proof, 

it is almost impossible for him to prevail on appeal by arguing the evidence compels a 

judgment in [its] favor.” ’ ” (Fabian, at p. 1067; see also Victaulic, at p. 505.) 

Appellants have not achieved the “almost impossible” in this case.

Appellants’ evidence was not “uncontradicted and unimpeached.” Jones’s 

declaration stated that she did not sign and enter into the contracts and that she was not 

told she would be signing a contract or entering into a loan, that she would have to 

finance the purchase of the solar panels, or that she was enrolling in a nongovernment 

transaction. Instead, Jones declared she was told that she would be enrolling in a free 

government program for low-income households in conjunction with PG&E, the plan 

included installation of solar panels, and the result of the plan would be that she paid 

$177 per month for her PG&E utility bill. Jones declared that Ware never told her that 

she was entering into any contracts or loans. Jones also simply touched Ware’s tablet at 

Ware’s direction, and Ware manipulated Jones’s cell phone in connection with Jones’s email. Also, Jones’s almost nonexistent technological ability (as confirmed by the April 

2022 call to Solgen) combined with the timing of the electronic opening, review, and 

signing of the contracts (less than 30-seconds for Solgen’s contract and less than 40-

seconds for GoodLeap’s contract) is inconsistent with the propositions that Jones had an 

adequate opportunity and ability to review and understand the contracts at issue, that 

Jones knew she was signing contracts, or that Jones was the one who actually 

electronically signed the two contracts. Each of these points is contrary to and 

inconsistent with appellants’ evidence and arguments, and each of these points indicates 

that Jones did not sign and enter into an agreement to arbitrate with either Solgen or 

GoodLeap.
23.

The trial court’s order shows that it found Jones’s evidence more credible. The 

court’s order specifically noted the timing of the review and signature process in relation 

to Jones’s clear lack of technological prowess. Similarly, the court noted that Ware never 

e-mailed the Solgen installation contract to Jones during the signing process. Instead, the 

contract was sent to and signed through an e-mail address that Ware and Solgen 

controlled. These facts clearly call into question the nature of Jones’s purported 

electronic signature on both contracts. The court also made note of Jones’s age and 

income. Jones was 81, and her income consisted of small Social Security checks. 

Crediting Jones’s assertion that she is careful with her money because of her low income, 

Jones’s age and income make it unlikely that Jones would sign a 25-year loan for 

$52,000. Further, the court found significant the fact that Ware was willing to contact 

GoodLeap and knowingly give false information about his identity to materially alter the 

terms of the GoodLeap loan agreement. The court implicitly found this conduct undercut 

the credibility of Ware’s declaration.6 

Appellants rely heavily on the video recording and four audio recordings. 

However, none of the recordings are so clear and compelling that reversal of the trial 

court’s order is mandated, particularly considering the trial court’s implicit credibility 

determinations. 

In the March 17 recording in which auto debit was declined, there are noticeable 

pauses in the conversation between GoodLeap and Jones. Thus, it is not clear if Jones 

heard everything that was said. Moreover, the clear gist of the call was that Jones did not 

want her bank account to be auto debited. Once she knew that this option would be 

6 Although not mentioned in the trial court’s order, Jones has pointed out that 

Ware’s account of the timing between the two GoodLeap loan agreements does not 

match GoodLeap’s documentation. Ware testified that a second loan agreement was 

signed by Jones, but as Jones points out, GoodLeap’s documentation indicates that a 

second loan application was denied because Jones already had an active account with 

GoodLeap. Appellants do not discuss this discrepancy, but the discrepancy raises further 

questions regarding the transactions and Ware’s credibility. 
24.

removed and she would only pay a little bit extra, she was satisfied. The call does not 

show that Jones signed and entered into a loan agreement, rather, it shows only that Jones 

knew her bank account would not be auto debited, and she would pay a little extra as a 

result. 

In the other two audio recordings between Jones and GoodLeap, Jones 

consistently expressed shock and surprise that she was both in a loan and the terms of the 

loan itself. Jones repeatedly said she was told that she would be participating in a no cost 

government program that would lower her utility bill to about $177 per month. Jones 

never agreed with GoodLeap that she had either signed a contract or agreed to a loan. 

The two recordings do not establish that Jones signed the GoodLeap loan agreement. 

Similarly, the video recording does not state that Jones signed any contract with 

either Solgen or GoodLeap. The video demonstrates Jones’s lack of technological ability 

because she was clearly reading her e-mail address, did not provide an accurate e-mail 

address, and did not end the address by saying the traditional “dot com.” The video asks 

Jones about an installation and agreement but does not use the terms “loan” or “contract,” 

nor does the video ever mention Solgen or GoodLeap. The video does not explain that 

Jones’s payments would rise to $241 after 18 months, nor does the video ever state that 

Jones signed any contracts. The video does mention payments and states that over 

25 years Jones would pay out $52,000, but the video does not say that this was a loan or 

clarify to whom the payments would be sent, i.e., to GoodLeap and not PG&E. 

Moreover, when the $52,000 figure was given, Jones furrowed her brow as if confused. 

Finally, the video does mention an inaccurate APR of 2.99 percent. While an APR figure 

would be indicative of a loan, it may not necessarily be inconsistent with a government 

program. It is unclear if Jones understood in general what an APR is, or specifically what 

the APR meant in relation to her transactions with Ware. Moreover, knowledge of an 

APR does not of itself establish that Jones signed anything. Under the totality of the 
25.

circumstances, Jones’s erroneous acknowledgement of an inaccurate APR does not 

compel a finding that Jones validly entered into a loan agreement with GoodLeap.

Finally, Jones’s April 2022 call to Solgen demonstrated that she does not know 

how to access e-mail on her cell phone and confirmed her virtually nonexistent 

technological ability. Solgen strenuously points out that Jones asked for a copy of the 

contract that she “signed.” Solgen makes entirely too much out of an isolated sentence 

by a non-attorney. If Jones’s goal was to get a written copy of the alleged installation 

contract, then her call is completely appropriate. There is nothing that required Jones to 

use specific words or incorporate legal caveats when she attempted to get a copy of a 

contract that she had previously denied signing. Although the sentence can be viewed as 

an admission that Jones signed a contract, it can also be viewed as Jones quickly trying to 

get a copy of a document that Solgen contended she signed. In the context of this appeal, 

and given the nature of the trial court’s ruling, we are compelled to view the sentence in 

the latter sense. (Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at p. 1067.)

Solgen also argues that the trial court imposed an unlawful requirement that Ware 

was required to highlight the arbitration clause of any contract. As quoted above, the 

court stated that Ware’s declaration and the video did not show that the arbitration 

agreement was brought to Jones’s attention during the 38-second review of the 21-page 

loan agreement. Solgen is correct that a requirement to specifically highlight an 

arbitration clause is preempted by the Federal Arbitration Act. (Sanchez v. Valencia 

Holding Co., LLC (2015) 61 Cal.4th 899, 914.) However, we believe it is possible to 

read the court’s order as not imposing such a requirement. There is an implicit 

conclusion within the trial court’s order that Jones could not have validly entered into a 

contract with an arbitration clause when the contract was 21 pages, the review period was 

38 seconds and through a cell phone, and Jones was 81 years old with virtually no 

technological ability. This implicit conclusion could be undermined to some extent if 

appellants had submitted evidence that Jones specifically had been told about the 
26.

arbitration clauses. In other words, rather than imposing a requirement that is contrary to 

Sanchez, the court’s order can be read as identifying a type of evidence that could have 

been presented, but was not, and that could have supported the conclusion that an 

arbitration agreement existed. Because we resolve ambiguities in favor of the validity of 

a court’s order, this is how we interpret the court’s order. (Eli B., supra, 73 Cal.App.5th 

at p. 1069; Keep Our Mountains Quiet, supra, 236 Cal.App.4th at pp. 740–741.) 

Finally, Solgen argues that the trial court misread Ruiz v. Moss Bros. Auto Group, 

Inc., supra, 232 Cal.App.4th 836 to impose a heightened requirement for electronic 

signatures. In part, the court’s order states that the “defendants must produce a higher 

level of proof where the arbitration agreement was allegedly signed electronically.” 

Despite the court’s use of the term “higher burden,” the substance of the order does not 

indicate that a higher burden was actually imposed. The next sentences after the “higher 

burden” quotation accurately discussed how the employer in Ruiz submitted a declaration 

that generally asserted that the employee signed the arbitration agreement, but that the 

general assertion was insufficient to authenticate the signature. (Id. at p. 844.) Further, at 

another portion of the order, the court indicated that the unique process of affixing an 

electronic signature to an agreement is generally considered sufficient to authenticate an 

electronic signature. The court then cited to Ruiz and held that the facts of this case 

undermined that usual process. The specific facts identified were that Ware 

impersonated his supervisor, Ware sent the installation contract only to a Solgen e-mail, 

and the review time for the lengthy contract was less than 40 seconds on a cell phone by 

an 81 year old with virtually no technological ability. We agree with the court that these 

facts are inconsistent with a typical electronic signing process. (Cf. Espejo v. Southern 

California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062 [discussing 

the evidence that connected the electronic signature to the signor and how the evidence 

presented surpassed the conclusory assertions in Ruiz].) Considering the relevant 

references to Ruiz and the actual analysis in the court’s order, we read the court’s order as 
27.

meaning that an employer cannot simply rely on conclusory assertions that fail to link an 

electronic signature with the alleged signor, and that the facts in this case undermine 

Ware’s assertions that he saw Jones sign the contracts. We do not read the court’s order 

as imposing a burden above and beyond what is necessary to authenticate a signature. 

(Cf. Eli B., supra, 73 Cal.App.5th at p. 1069 [resolving ambiguities in a court’s order in 

favor of affirmance]; Keep Our Mountains Quiet, supra, 236 Cal.App.4th at pp. 740–741

[same].)

In sum, the trial court did not impose improper burdens on appellants. Further, 

appellants’ evidence was not uncontroverted and unimpeached and did not compel a 

finding that appellants met their burden of proof. Therefore, the trial court’s conclusion 

that appellants failed to meet their burden of establishing a valid signature and thus, a 

valid agreement to arbitrate was not erroneous as a matter of law. 

IV. Evidentiary Hearing

A. Parties’ Arguments

GoodLeap argues that the trial court reversibly erred by not holding an evidentiary 

hearing because the parties’ factual account of events was sharply contested. Jones 

argues among other things that the court did not abuse its discretion in declining to hold 

an evidentiary hearing. We agree with Jones.

B. Legal Standard

When a petition to compel arbitration is filed, the trial court is to resolve the 

petition “in a summary manner and upon the notice provided by law for the making and 

hearing of motions ....” (Code Civ. Proc., § 1290.2; Rockefeller Technology Investments 

(Asia) VII v. Changzhou Sino Type Technology Co., Ltd. (2020) 9 Cal.5th 125, 142.) 

This generally means that “facts are to be proven by affidavit or declaration and 

documentary evidence, with oral testimony taken only in the [trial] court’s discretion.” 

(Rosenthal, supra, 14 Cal.4th at pp. 413–414; Chambers v. Crown Asset Management, 

LLC (2021) 71 Cal.App.5th 583, 592.) There is no entitlement to an evidentiary hearing, 
28.

and a trial court does not per se abuse its discretion by resolving evidentiary conflicts 

without hearing live testimony. (Rosenthal, at p. 414; Ashburn v. AIG Financial

Advisors, Inc. (2015) 234 Cal.App.4th 79, 96 (Ashburn).) However, when the 

“enforceability of an arbitration clause may depend upon which of two sharply 

conflicting factual accounts is to be believed, the better course would normally be for the 

trial court to hear oral testimony and allow the parties the opportunity for crossexamination.” (Rosenthal, at p. 414; see Ashburn, at p. 96; see also Sonic-Calabasas A, 

Inc. v. Moreno (2013) 57 Cal.4th 1109, 1157 [“With respect to claims of fraud, where 

factual differences may be difficult to resolve without making credibility determinations, 

oral testimony is generally appropriate”].) 

The decision of whether to hold an evidentiary hearing is reviewed for an abuse of 

discretion. (See Sonic-Calabasas A, supra, 57 Cal.4th at p. 1157 [recognizing that trial 

courts have discretion to take oral testimony]; Engalla v. Permanente Medical Group, 

Inc., supra, 15 Cal.4th at p. 972 [same]; Rosenthal, supra, 14 Cal.4th at p. 414 [same]; 

Ashburn, supra, 234 Cal.App.4th at p. 97 [holding that the trial court abused its discretion 

by not conducting an evidentiary hearing].) “The appropriate test for abuse of discretion 

is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain, supra, 

44 Cal.3d at p. 478; see People v. Johnson (2022) 12 Cal.5th 544, 605.) “ ‘A merely 

debatable ruling cannot be deemed an abuse of discretion.’ ” (Johnson, at p. 605; 

Electronic Frontier Foundation, Inc. v. Superior Court (2022) 83 Cal.App.5th 407, 422.) 

An abuse of discretion may be demonstrated by showing “ ‘ “ ‘the trial court exercised its 

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a 

manifest miscarriage of justice.’ ” ’ ” (Johnson, at pp. 605–606; Electronic Frontier 

Foundation, at p. 422.)

C. Analysis

In this case, there are allegations of fraud and sharp factual disputes between the 

declarations of Jones and Ware. Under Rosenthal and Sonic-Calabasas A, the trial court 
29.

would have been well advised to conduct an evidentiary hearing as the “better course.” 

Nevertheless, “better course” is not synonymous with “only reasonable course,” and the 

fact that the “better course” was not pursued does not mean that the court abused its 

discretion. 

In addition to the competing declarations of Jones and Ware, the trial court also 

had the benefit of four audio recordings and one video recording. Aspects of these 

recordings are clearly favorable to Jones. During the two phone calls with GoodLeap, 

Jones consistently sounded surprised or concerned about being responsible for a 25-year 

$52,000 loan and repeatedly stated that she did not sign contracts but believed that she 

was being enrolled in a free government program that would set her energy payments at 

$177 per month. Moreover, the April 2022 call with Solgen clearly demonstrated that 

Jones’s technological prowess, at least with her cell phone, is extremely limited. The call 

revealed that Jones did not know how to access or retrieve e-mail messages (including 

attachments) from her cell phone. Jones had to get help from her daughter and can be 

heard telling her daughter that she (Jones) does not know how to access e-mail from her 

phone. Similarly, the video confirms Jones’s limited ability or understanding with 

respect to e-mail. Jones paused, read something, did not give her correct e-mail address, 

and failed to say the familiar “dot com” ending while trying to tell Ware her e-mail 

address. Additionally, when Ware mentioned that Jones would pay about $53,000 in 

total, Jones furrowed her brow, which can be interpreted as a sign of confusion, and Ware 

quickly asked Jones about her experience, which can be interpreted as an attempt to cut 

off a forthcoming question or brush past an important and misunderstood (or 

misrepresented) point. The court clearly believed that it had sufficient information before 

it to resolve key disputes and rule on the motions to compel. Considering the recordings 

and the undisputed aspects of the declarations, we cannot say that the court’s decision to 

not hold an evidentiary hearing was so arbitrary, capricious, or patently absurd that there 
30.

was a miscarriage of justice. Therefore, the court’s decision was not outside the bounds 

of reason and did not constitute an abuse of discretion.

GoodLeap relies heavily on Ashburn, which held that a trial court abused its 

discretion by not holding an evidentiary hearing. However, the First District Court of 

Appeal had two bases for reaching this conclusion. First, the record contained no 

indication that the lower court had exercised its discretion. (Ashburn, supra, 

234 Cal.App.4th at p. 97.) In this case, GoodLeap asked for an evidentiary hearing, and 

none was provided. Although the court did not explain its implicit denial, we presume 

that the court exercised its discretion in denying the request. (Jameson v. Desta, supra,

5 Cal.5th at p. 608; People v. Stowell (2003) 31 Cal.4th 1107, 1114; Corenevsky v. 

Superior Court, supra, 36 Cal.3d at p. 321.) Second, the disputes in Ashburn were 

profound and extensive. (Ashburn, at pp. 98–99.) The Ashburn parties could not agree 

as to what the pertinent documents were called, what the five appellants signed, how they 

came to sign the documents, whether meetings with appellee’s representative occurred, or 

what the signed documents said, and the nature of the relationship between appellee’s 

representative and the five appellants was disputed. (Ibid.) In this case, there is 

ultimately a dispute between Jones and Ware. There are no disputes involving multiple 

plaintiffs, the nature of the relationship between Jones and Ware, whether Jones and 

Ware ever met, or the terms of the agreements at issue. Moreover, unlike Ashburn, the 

court in this case had the added benefit of audio and video recordings, which gave the 

court the ability to consider real-time reactions and statements. Therefore, while the 

disputes in this case are sharp, they are not as extreme and wide ranging as the disputes in 

Ashburn. For these reasons, Ashburn does not mandate a remand for the court to conduct 

an evidentiary hearing.

In sum, the trial court did not abuse its discretion by failing to hold an evidentiary 

hearing.
31. 

DISPOSITION7

 The judgment is affirmed. Costs on appeal are awarded to respondent pursuant to 

California Rules of Court, rule 8.278(a)(2). 

POOCHIGIAN, Acting P. J. 

WE CONCUR: 

SMITH, J. 

DE SANTOS, J. 

7 If there is no valid arbitration agreement, whether the terms of a purported 

arbitration agreement are unconscionable does not matter because arbitration cannot be 

ordered without a valid agreement. (See Avery v. Integrated Healthcare Holdings, Inc.

(2013) 218 Cal.App.4th 50, 71; see also Avila, supra ̧ 20 Cal.App.5th at pp. 843–844 

[explaining that the existence of a valid arbitration agreement is a threshold question that 

must be answered before parties can be ordered to arbitrate].) Because we affirm the trial 

court’s order that appellants failed to demonstrate a valid agreement to arbitrate, we do 

not address Solgen’s argument that the court erred by additionally finding the installation 

contract to be unenforceable as unconscionable. 
32. 

Filed 2/26/24 – Order for Publication

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

MARY ANN JONES,

Plaintiff and Respondent, 

 v. 

SOLGEN CONSTRUCTION, LLC et al., 

Defendants and Appellants. 

F085918 

(Fresno Super. Ct. 

No. 22CECG01590) 

ORDER GRANTING REQUEST 

FOR PUBLICATION

 As the nonpublished opinion filed on February 2, 2024, in the above entitled 

matter hereby meets the standards for publication specified in the California Rules of 

Court, rule 8.1105(c)(2), it is ordered that the opinion be certified for publication in the 

Official Reports 

POOCHIGIAN, Acting P. J. 

WE CONCUR: 

SMITH, J.

DE SANTOS, J.