Friday, January 9, 2015

Electronic Signaures Degree Zero

J.B.B. Inv. Partners, Ltd. v. Fair, No. A140232 (D1d2 Dec. 30, 2014)

This is that weird case from a few weeks ago that was ordered depublished by the panel only a few hours after it was issued. Now, following a publication request under Rule of Court 8.1120 and some minor modifications, the court re-orders the opinion published in the official reports.

So the question is whether defendant’s printed name at the end of an email accepting the terms of a settlement was a “signature” under the Uniform Electronic Transactions Act, Civil Code § 1633.1, et seq. Before any complaint was filed, plaintiff sent defendant an email outlining a potential settlement. Defendant responded, somewhat ambiguously, that he disputed the facts in the email but that he agreed. His email was followed by his printed name. After being asked to clear up the ambiguity, defendant sent another email, and also a text message and a voicemail, confirming that he would agree to the terms. In the interim, plaintiff filed its complaint.

But when it came time to sign off on the formal settlement, defendant balked. Plaintiff then filed a motion to have the settlement enforced under Code of Civil Procedure § 664.6. In support, it submitted the various communications as proof that a settlement existed. Defendant opposed, arguing, duress, lack of sleep, that he was pro per at the time, and that he had only agreed to agree. The trial court—which made specific findings doubting the defendant’s veracity—found that there had been a meeting of the minds, and ordered the terms of the settlement enforced.

Prior cases have made clear that, in order for a settlement agreement to be enforceable under § 664.6, it needs to be signed by the actual parties, not just their counsel.  The issue comes down to whether the defendant’s printed name at the end of his email is an “electronic signature” under the UETA. As the recently decided Ruiz case explains, under Civil Code § 1633.9(a), a signature generally satisfies the Act when it can be attributed to an act of the signatory. But the court here finds that to be a necessary, but not sufficient, condition of creating an electronic signature. To be all Roland Barthes about it, the court essentially says that, under the definitional provision in §1633.2(h), a signifier is only a sign of a signature when what is signified is the signatory’s intent that the signifier signify a formal electronic recognition of the agreement. Viz, writing your name at the end of an email is not necessarily a manifestation of your intent to
sign a document like one would sign a contract.

Here, the evidence did not establish that the parties agreed that their email correspondence could constitute a formalization of the terms of the settlement. Absent such evidence, the fact that defendant agreed that he typed his name at the email was insufficient warrant a finding that he “signed” the settlement under § 664.6. Nor did the fact that the correspondence could establish an agreement under the common law of contract require a different result. Section 664.6 requires a signature. Without it, an agreement can’t be enforced under its authority, even if the law would otherwise deem the agreement to be a valid contract.


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