1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STANISLAV EMELYANENKO, Case No. 23-cv-00570-AMO

8 Plaintiff,

ORDER RE MOTION TO COMPEL

9 v. ARBITRATION, MOTION TO STRIKE,

AND PLAINTIFFS’ OBJECTIONS TO

10 WILLIAM JOSEPH STRAFACH, et al., EVIDENCE 11 Defendants. Re: Dkt. Nos. 45, 61, 64

12

13

14 Plaintiff Stanislav Emelyanenko sues his former employer, Sudo Security Group, Inc., and 15 its chief executive officer and chairman, William Joseph Strafach, for making false promises and 16 representations when recruiting him to join the company and engaging in other wrongful conduct. 17 Defendants move to compel arbitration and dismiss or, alternatively, stay this action. 18 Emelyanenko opposes the motion, moves to strike an errata to one of Defendants’ supporting 19 declarations, and objects to evidence Defendants offered for the first time in reply. Having read 20 the parties’ papers and carefully considered their arguments and the relevant legal authority, the 21 Court DEFERS RULING on the motion to compel arbitration pending further proceedings, 22 DENIES the motion to strike, and OVERRULES the objections to evidence, for the reasons set 23 forth below. 24 /// 25 /// 26 /// 27 /// 1 I. BACKGROUND 2 A. Factual Background1 3 1. Emelyanenko’s recruitment 4 Sudo is a consumer privacy information technology company headquartered in San 5 Francisco. ECF 1-2 (“Compl.”) ¶ 3. Strafach is the company’s “CEO/President, Director, [and] 6 Chairman of [its] Board of Directors.” Id. ¶ 4. Chirayu Patel is Sudo’s Chief Operating Officer. 7 Id. ¶ 5. 8 Patel approached Emelyanenko in 2018, with an offer to join Sudo as the Senior Vice 9 President of Engineering. Id. ¶ 11. Between December 2018 and January 2019, Strafach and 10 Patel “made a series of statements in order to illustrate the state of Sudo and the offered 11 employment.” Id. ¶ 12. On January 4, 2019, Strafach gave Emelyanenko an offer letter, 12 “backdating the start date to December 15, 2018, when Plaintiff began to avail himself and his 13 services for employment by Defendants.” Id. ¶ 13. The email attaching the offer letter indicated 14 that Sudo was “in process of raising Series A round,” and “[t]he original and consecutive 15 messaging outside of the company resources indicate[d] the same.” Id. ¶ 14. Emelyanenko 16 “relied on this statement when first responding to solicitation by Strafach and Patel, and later in 17 accepting the employment.” Id. 18 “[I]nitial and subsequent messaging indicated having successfully raised a capital [sic] in 19 the approximate sum of $1,000,000 from Mark Cuban in the form of [a] Seed Round.” Id. ¶ 17. 20 In 2022, “Patel and the lead investor Stephen Grant Russell” revealed that “[t]his statement was 21 grossly inaccurate.” Id. ¶ 15. The actual amount raised was $100,000-$200,000, not $1,000,000. 22 Id. ¶¶ 17-18. Sudo “was in a dire financial situation without necessary means to fulfill its 23 obligations to [Emelyanenko].” Id. ¶ 18. Though Emelyanenko “was under [the] impression that 24 Series A [wa]s being sought when [he was] introduced to . . . Russell[,] . . . Defendants were 25 1 This background is taken from the allegations in the complaint and the declarations submitted in 26 connection with the pending motion. See Lomeli v. Midland Funding, LLC, No. 19-CV-01141- LHK, 2019 WL 4695279, at *1 (N.D. Cal. Sept. 26, 2019) (drawing on “several sources, including 27 the [c]omplaint and the evidence [d]efendants ha[d] submitted in support of their motions” for the 1 seeking a different type of funding, some form of seed level to bridge the financial gaps.” 2 || Id. ¥ 20. This left Sudo “unable to provide for the conditions of employment offered and accepted 3 || by [Emelyanenko].” Jd. 22. But for Defendants’ false promises and false representations, 4 || Emelyanenko “never would have worked or partnered with [them] or signed the underlying 5 contracts.” Id. 7 44. 6 2. The onboarding process 7 In 2020, Patel hired a third-party provider — Sequoia — to handle employee benefits and 8 || human resources functions for Sudo. ECF 46 (“Patel Decl.”) § 3. Sequoia provided services to 9 || Sudo from May 1, 2020 to July 15, 2022. ECF 62-1 (“Schodt Decl.”) § 1. It held open enrollment 10 || meetings to explain the benefits available to Sudo employees. Jd. {| 4. Emelyanenko accepted a 11 calendar invite to one such meeting, scheduled for April 1, 2020: 12 Open Enrollment - Meeting & ~ 1 Wed Apr 1, 2020 10 AM to Alert 10 minutes before start 15 © Pill Nao! \ 2 4.) Saiectccal ever : * © justin.williams@guardianapp.com 16 ©) stas.emelyanenko@qguardianapp.com 3 17 Apr 1 ©) dylan.laws@guardianapp.com 6 Aorta Papell d ©) kevin.bradley@guardianapp.com \, Z 18 4 ® Sudo Security Seq.. 104” © ©) rickmark@guardianapp.com 19 Zoom Conference ' 8 link

4 1 3 + Arbitration is usually confidential and not a part of the public record unless one or the other parties files a challenge in court to the arbitrator's ruling. 5 1 4 Inarbitration, the case is decided by a neutral and impartial person chosen by both sides. The arbitrator is typically a retired judge or a very experienced lawyer. The arbitrator will hear the case and make a decision based on the evidence provided and applicable law. 5 1 5 * Inarbitration, you will have the right to be represented by an attorney if you wish, but an attorney is not required. If you decide not to sign the Dispute Resolution Agreement you will not experience any negative employment consequences, and there will be no retaliation against 16 ven lf you have any questions about this policy or the following Dispute Resolution Agreement, please contact the Company. If you do not receive a timely or complete 1 7 response, please contact PEO. 2 Employee's Acknowledgment |, the employee, confirm receipt of this Voluntary Dispute Resolution Policy. 1 8 Stanislav Emelyanenko 04-14-2020 11:14 AM 19 20 || ECF 46-2 (‘Dispute Resolution Policy” or “Policy”) at 2. Emelyanenko’s name appears at the 21 top, with his employee identification number. Patel Decl. 9. “Each employee . .. would confirm 22 || receipt of the Policy, which was time-stamped within the system.” Jd. J 11. Emelyanenko 23 || confirmed receipt on April 14, 2020 at 11:14 a.m. Id. § 12 & Policy at 2. 24 | // 25 | /// 26 07 * According to Patel, this document “indicate[s] that Mr. Emelyanenko participated in one of [Sequoia’s] open enrollment meetings for Sudo.” Patel Decl. § 5. The Court has not credited this 2g || portion of Patel’s declaration in ruling on the motion to compel arbitration because the document only shows that Emelyanenko accepted the calendar invite.

1 After receipt of the Policy, “each employee . . . received a copy of the “California Dispute 2 || Resolution Agreement — Worksite Employee, Sudo Security Group & PEO.” Jd. 13. That 3 agreement reads, in part: 4 The employee identified below (“Employee”), on the one hand, and Sudo Security Grayp and Sequoia One ("PEO"), on the other hand (hereinafter individually referred to as "the Party", and collectively referred to as "the Parties"), agree to utilize binding arbitration as the sole and exclusive means to resolve all disputes that arise between Empl and the Company and/or Emp! and PEO. Such disputes include, but are not limited to, claims Em bring against 5 may loyee y loyee ployee may bring agai the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, benefits claims, and torts such as invasion of privacy, assault and battery, or defamation. Such disputes also include claims that the Company or PEO might bring against Employee such as, for 6 example, theft of money or trade secrets, breach of a confidentiality Agreement, or breach of a contract. Included within the scope of this Agreement are all disputes, whether based on tort, contract, statute (whether such claims are based on the California Fair Employment and Housing Act, Title VII of the Civil Rights 7 Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the California Family Rights Act, the Family and Medical Leave Act, the California Labor Code, the California Wage Orders, or any other local, state, or federal law or regulation), equitable law, or otherwise. 8 Employee specifically waives and relinquishes their right to bring a claim against the Company or PEO, in a court of law, and this waiver shall be equally binding on any person who represents or seeks to represent Employee in a lawsuit against the Company or PEO in a court of law. Similarly, the Company and PEO specifically waive and relinquish their respective rights to bring a claim against Employee in a court of law, and this waiver shall be equally binding on any person 9 who represents or seeks to represent the Company or PEO in a lawsuit against the Employee in a court of law. 10 Id. ¥ 13 & Ex. 2 (“Dispute Resolution Agreement” or “Arbitration Agreement”) at 2. “To show 11 agreement to the Arbitration Agreement, an employee . . . had to affirmatively click the box at the = 12 || endof the Arbitration Agreement that appears before the paragraph that starts with the sentence

. . . . . . 13 ‘[e]lick here to indicate that you have read and agree to the terms of the “California Dispute

v 14 || Resolution Agreement” above.” Patel Decl. § 14. Emelyanenko’s name and employee

15 identification number appear at the top of the document: ey

5 16 D]iye]0 i Mare) (ittelaw aetna □

Sa 17 Name: Stanislav Emelyanenko Employee ID: B42098 Client: Sudo Security Group 18 19 California Dispute Resolution Agreement - Worksite Employee, Sudo Security Group, & PEO g y 20 || Dispute Resolution Agreement at 2 & Patel Decl. J 16. The box at the end of the agreement is 21 checked: # 22 Click here to indicate that you have read and agree to the terms of the "California Dispute Resolution Agreement" above. By clicking this box, employee confirms the fact that employee has read, understands, and voluntarily agrees to be legally bound to all of the above terms. Employee further understands that this 23 agreement requires the employee and the company or PEO to arbitrate any and all disputes that arise out of employee's employment with company, and/or relationship with PEO, and that employee and the company, or PEO are giving up their respective rights to a trial by jury. Do not check this box until you have read the above acknowledgment and agreement. 24 25 Id. 26 Sequoia maintains “an online operating platform . . . that provides, among other things, 27 ‘|| newly hired employees their onboarding documents and maintains employment records.” Schodt 28 Decl. § 2. According to its VP of Operations, Dustin Schodt, each platform user “[wa]s required

1 to create a personal account that is unique to the individual user ... . by validating their last name 2 || and 9-digit Social Security Number.” Jd. § 3. If either “d[id] not match the employee’s 3 information, the account w[ould] not get created.” Jd. If both “match[ed] the employee’s 4 || information, then the account w[ould] get created with the email address that the employee entered 5 and a unique, secure password that the employee set.” Id. 6 Sudo employees were required to complete the onboarding process through Sequoia. 7 || Id. 44. To start that process, “a user was required to log in with their user name and 8 || password....” Id. Once signed-up, “the user [wa]s required to authenticate their information on 9 Form 1-9, Section 1, including their last name, first name, date of birth, and social security number 10 (if entered) with respect to the identity of the individual who viewed a document and any form of 11 signature or acknowledgment on a document.” Id. If any of those “d[id] not match what [wa]s in 12 || the system, then the user [would] not be able to continue the onboarding process.” Id. 5 13 Based on his review of Emelyanenko’s platform account, Schodt declares the following. 14 || Id. 95. Emelyanenko is a former employee of Sudo. Jd. Sequoia sent him an email “requesting

15 || that he set up his user account and . . . complete his onboarding documents on April 14, 2020.” Id.

16 || Emelyanenko “first created his user account... on April 14, 2020, and first logged into his 3 17 account on April 14, 2020 at 1:00 p.m. Central Time.” Jd. Emelyanenko “first viewed his

Z, 18 || onboarding employment documents[,]” including the Arbitration Agreement and the Dispute 19 || Resolution Policy, on April 14, 2020. Id. Attached to Schodt’s declaration is a screenshot “listing 20 || the documents [Emelyanenko] agreed to as part of his onboarding process on April 14, 2020.” Id. 21 That screenshot is reproduced below:

23 24 Soncsuhonait Same waster ts 25 Stwtwnivas umount peti & Workers’ Compensation, 659, Custom Document Workers’ Compensation 2. 26 BP Worksite Emolovee Acknowle Custom Document Worksite molovee Acknowledament 8 Hendbook 10 27 28

1 Id. 5 & Ex. A? Schodt declares that on April 14, 2020, Emelyanenko “viewed” both the Dispute 2 || Resolution Policy and the Dispute Resolution Agreement, “and electronically agreed to the 3 || Dispute Resolution Policy ... via checking the box on[] the Dispute Resolution Agreement[.]” Jd. 4 | 47. 5 Sequoia saved the completed documents on its platform, which “makes available a 6 || document to a particular authenticated user and securely obtain[s] an electronic acknowledgment 7 from that user on the document.” Jd. 48. “A unique document identification number . . . appears 8 in the name of the document.” Jd. The document identification number for the Dispute 9 || Resolution Policy is 20200414131423, and the document identification number for the Dispute 10 || Resolution Agreement is 20200414131432. Id. Schodt explains “that the unique identification 11 number reflects the date and time (in Central Time) that the employee acknowledged the = 12 || document.” Jd. He also declares that the “unique document identification number that appears in

. & 13 the name of the document as well as in the screenshot of such documents . . . confirms” that the

v 14 || copies of the agreements attached to his declarations “are the same documents saved in the O 15 document record with respect to [Emelyanenko] on the Platform.” Id.

Q 16 Schodt also provides a copy of Emelyanenko’s login history, reproduced below:

2 17 Company Mame = Resort Name Section Crmerta ‘103.H0R.1 ther Ale Fad? Date 9 Cetegury Gescription Prooess IE Aooess Field 7 Lett dust. Fhedel 2 Left □□□□ □□□□□ Left duct. ‘Saquofa PEO. Login History Papert ‘Search Lagin Hirtory with kientifiae "stad am” bey Data" by identifies’ stators O4feneo OAMPM premier HAPLSERS =7L20292.31 succeed Sequoia PEO Login History Reqert ‘Search Login History wth ldentifier ‘stasem* by Date” by Identifier” slauarm OLED CeO prierhr HAPLUSERS = 206. 88.029.99 SURES Sequoia PES Login History Fimport Search Login History with identifier "stas. by Date’ by identifier’ 041420 peter HRPLUSERS = 209, S299 SUCCESS Sequeta PES Login HBRory Ripert = Search Login Hivlery with kien ther stan em! by Gate" by identifier’ stasere BLESSPM peter HAP.USERS = 71202.82.51 fal 659 □□ 18 Sequol FEO Login Hexory Repert = Search Login History with: ktentiier stas am’ by Date" by identifies’ sinner O61/202 DTPA pets HAP.LSERS =| -71202.22.31 fail □□□ □□□□ Sequok FED ‘Login Himory Feport, ‘Seasch Legis Hisbory with bdeet ffir “viii bby Date" by idenkifar acem Oayaty2020 -GG9-MPM prismbr HAP.USERS = 72.202.82.31 acess oo □□□□ Sequola FED Login History Report = Search Login History with identifier ‘zim! by "Dante" by identifier! = staxeen 20/2020 GRASP premier MAPLGERS | 71021 SUGCESS 659 □□□□□ Sequoia FEO Lagin History Papert = Search Login History with ident er ‘sticsam! by "Darta" by ‘ielertifier! slanemn | Oa pismhe HAPLUGERS | P2028.91 suSeSs 65) □□ 19 Sequoia PED Lagin History Rapart Search Login Hisbary wits bert Maar tinier! by "Datta" by "idertitiee she □□□ | LOAM prismbr HAPLUSERS L021 suptmss □□ □□□ Sequels FED Login History Repert Smacch Logic Hisbory wilt bderd Migr ‘wtara.erm! by Dele’ by ‘derkiier stave = CRYELEO2O 6 O2MeMP prismbr HAPLUSERS = 205.58,129.100 fail □□□ Sequola PEO Login History Report Seaech Login History with identifier ‘xterm’ by "Dart boy “icherntyitir* staxem O8/SIm20 «O229:55FM prismbr WAP.USERS §=©209.58.129.100 suecess □□□ □□□ Sequoia PED Login History Rapare Search Login Hintory with icecream! ee a none eee ne re ieee SLCEEE □□□ 20 sea tae riterr tape senah Lagu tony witdsestr ese? ey owa'by anne? nen tuseranet oeansapm lend HRP.USES a7.a0.215.233 susenas □□ □□□ Sequel PED Login nivtory Report = dearch Login Mintory with IdertHigr ‘simsarey by ‘Derte* by ‘darter stam MYIS/2021 GPM prem HAP.USERS «= 37.120215.239 | sete 659 □□□□ 21 22 || □□□ □□ & Ex. B. 23 |} □□□ 24 || /// 25 26 || 3 ws 1 . The exhibits are attached to the original Schodt declaration, but not the subsequent errata. 07 Compare ECF 60-3 with ECF 62-1. 28 “ Because the list provided does not contain the document identification numbers Schodt references, the Court has not considered this portion of his declaration. =

1 B. Procedural Background 2 On December 21, 2022, Emelyanenko commenced this action against Strafach and Sudo in 3 San Francisco Superior Court, asserting claims for (1) fraud/corporate fraud, (2) securities fraud, 4 (3) breach of contract, (4) extortion, (5) racketeering, (6) unfair competition/business practices, 5 (7) harassment/stalking, and (8) violation of California Government Code § 12900, et seq. 6 Compl. ¶¶ 42-102. Strafach removed the action to this Court on February 8, 2023. ECF 1.5 On 7 March 10, 2023, Defendants filed a motion to compel arbitration. ECF 24. On December 28, 8 2023, the Court denied the motion without prejudice. ECF 44. 9 Defendants filed the instant motion to compel arbitration on January 29, 2024, with 10 accompanying declarations from Patel and Strafach. ECF 45, 46, 47. Emelyanenko filed his 11 opposition to the motion on March 4, 2024, with his own declaration in support. ECF 51, ECF 52. 12 Defendants filed their reply on March 25, 2024, with supplemental declarations from Patel and 13 Strafach and a declaration from Schodt. ECF 60. On April 1, 2024, Emelyanenko filed objections 14 to that evidence. ECF 61. Defendants filed an errata to the Strafach declaration on April 3, 2024. 15 ECF 62. On April 24, 2024, Emelyanenko moved to strike the errata and the Schodt declaration, 16 including his own declaration in support. ECF 64, 65. Defendants filed their opposition to the 17 motion on May 8, 2024. ECF 68. Emelyanenko filed his reply in support of the motion on May 18 15, 2024, again including a declaration of his own in support. ECF 69, 70. 19 II. LEGAL STANDARD 20 “The Federal Arbitration Act (‘FAA’) governs motions to compel arbitration.” Longboy v. 21 Pinnacle Prop. Mgmt. Servs., LLC, --- F. Supp. 3d ----, ----, 2024 WL 815550, at *3 (N.D. Cal. 22 Feb. 23, 2024) (citing 9 U.S.C. §§ 1, et seq.). In deciding such a motion, the court must consider 23 two “gateway issues.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (citation 24 omitted). First, “whether a valid agreement to arbitrate exists.” Lim v. TForce Logistics, LLC, 8 25 F.4th 992, 999 (9th Cir. 2021) (citing Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 26 1130 (9th Cir. 2000)). Second, “whether the agreement encompasses the dispute at issue.” Id. “If 27 1 the answer is yes to both questions, the court must enforce the agreement.” Lifescan, Inc. v. 2 Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004) (citing Chiron, 207 F.3d at 3 1130). 4 In determining the existence and validity of an agreement to arbitrate, “a court applies a 5 standard similar to the summary judgment standard of [Federal Rule of Civil Procedure] 56.” 6 Concat LP v. Unilever, PLC, 350 F. Supp. 2d 796, 804 (N.D. Cal. 2004) (internal quotation marks 7 omitted). If “a district court concludes that there are genuine disputes of material fact as to 8 whether the parties formed an arbitration agreement, the court must proceed without delay to a 9 trial on arbitrability and hold any motion to compel arbitration in abeyance until the factual issues 10 have been resolved.” Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 672 (9th Cir. 2021). 11 III. DISCUSSION 12 Because the Court applies a summary judgment standard in deciding the pending motion to 13 compel arbitration, see Concat LP, 350 F. Supp. 2d at 804, the Court first addresses 14 Emelyanenko’s motion to strike and his objections to evidence before turning to the underlying 15 motion. 16 A. Motion to Strike 17 Emelyanenko moves to strike Defendants’ errata to the Schodt declaration. ECF 64 18 (“MTS”). The errata revises the original declaration to include the language: “I declare under 19 penalty of perjury that the foregoing is true and correct and that this declaration was executed on 20 April 2, 2024.” ECF 62 at 1; ECF 62-1 at 4. The declaration previously stated: “I declare that the 21 foregoing is true and correct.” ECF 60-3 at 4. The use of an errata to make this type of correction 22 is appropriate. See Kaplan v. Seterus, Inc., No. 16-CV-02940-JCS, 2017 WL 3478801, at *9 n.8 23 (N.D. Cal. Aug. 14, 2017) (finding that an errata properly cured failure to attest that declaration 24 was made under penalty of perjury). 25 /// 26 /// 27 /// 1 The Court rejects the Emelyanenko’s arguments to the contrary. He argues that:

2 Errata sheets are designed to correct errors and can’t be used as a do-it-over tool especially after-the-fact. Defendants presented no 3 error to Plaintiff or to the Court. Defendants did not reveal who is the initiator of the correction/modification. Plaintiff has never 4 agreed to the “correction” and is not going to. Defendants specify no reason for the “correction.” 5 6 MTS at 3. The correction made is precisely the type of oversight for which an errata is 7 appropriate, and the reason for the correction is stated on the errata, identifying the page and line 8 number corrected. See Kaplan, 2017 WL 3478801, at *9 n.8. This is not an inappropriate do- 9 over, it does not require identification of who initiated it, and while parties should be able to 10 resolve these types of issues by stipulation, consent is not required to make the correction at issue 11 here. See id. (stating that “[u]nless a party refuses to provide a properly sworn declaration, the 12 Court expects this sort of oversight to be resolved through communication and stipulation, not 13 through evidentiary objections.”) (emphasis in original). 14 Emelyanenko’s argument that the errata violates Civil Local Rule 7-3(d) also lacks merit. 15 MTS at 3. With limited exceptions not applicable here, the rule prohibits the filing of “additional 16 memoranda, papers, or letters” once a reply is filed unless the filing party first obtains court 17 approval. See Civil L.R. 7-3(d). An errata making the limited correction at issue here is not the 18 type of additional memoranda, paper, or letter prohibited by Civil Local Rule 7-3(d). See Bias v. 19 Moynihan, 508 F.3d 1212, 1224 (9th Cir. 2007) (stating that “[n]otices of errata to clarify clerical 20 errors are substantively different from attempts to file supplemental briefs unauthorized by local 21 rules.”). 22 Emelyanenko’s remaining arguments fare no better. He argues that he is prejudiced by the 23 errata because Defendants waited “to try to introduce something that’s both inadmissible and 24 pretty arguable for the sake of delaying the prosecution of this case,” Defendants did not confer 25 with him or try to obtain his consent, and Defendants should have raised the factual contentions in 26 the Schodt declaration in their opening brief. MTS at 3. Emelyanenko’s claims of prejudice are 27 not persuasive. As a preliminary matter, other than the argument concerning consent, which the 1 by the errata. They attack the substance of the Schodt declaration itself. Emelyanenko’s 2 arguments are thus unpersuasive for this reason alone.6 But even if Emelyanenko’s challenges to 3 the substance of the Schodt declaration were proper, Defendants may, as here, properly respond to 4 arguments raised in an opposition to a motion on reply. See Applied Materials, Inc. v. Demaray 5 LLC, No. 5:20-CV-05676-EJD, 2020 WL 8515132, at *1 (N.D. Cal. Dec. 16, 2020) (explaining 6 that “evidence submitted with a reply brief is not new evidence when it is submitted to rebut 7 arguments raised in the opposition brief”). For this reason, Emelyanenko is not entitled to prevail 8 on his motion to strike based on the timing of the Schodt declaration or the errata. Indeed, had 9 that timing somehow prejudiced his ability to oppose the motion to compel arbitration as he 10 contends, he could have sought leave of Court to file a sur-reply, as he did in connection with the 11 prior motion. See ECF 35. 12 Accordingly, the Court DENIES the motion to strike and now turns to the objections 13 Emelyanenko raises to Defendants’ reply evidence. 14 B. Objections to Evidence 15 Emelyanenko objects to the declarations Defendants submitted with their reply in support 16 of the motion to compel arbitration. ECF 61 (“Objs.”). The Court addresses each objection in the 17 sequence presented by Emelyanenko. 18 First, Emelyanenko objects that Schodt’s declaration is not made under penalty of perjury 19 in compliance with 28 U.S.C. § 1746.7 This objection is OVERRULED because, as discussed 20 above, the errata to the Schodt declaration cures the deficiency in the original declaration. See 21 Kaplan, 2017 WL 3478801, at *9 n.8. 22 Second, Emelyanenko objects that Schodt “doesn’t offer his availability to the Court or 23 6 The Court does not reach Emelyanenko’s argument about Sudo’s lack of corporate powers, see 24 MTS at 4-5, because it is wholly unrelated to the subject of the motion to strike, i.e., whether the errata to the Schodt declaration is improper. The Court discusses Emelyanenko’s attack on the 25 admissibility of the Schodt declaration and challenges to the factual assertions contained in it together with the duplicative evidentiary objections he has raised. 26

7 The statute requires that declarations executed in the United States contain an attestation the 27 declarant’s statements are true and correct under penalty of perjury. See 28 U.S.C. § 1746. 1 Plaintiff.” Objs. at 2. The Court construes this objection as a challenge to the admissibility of 2 Schodt’s declaration. So construed, it is OVERRULED because at this stage, the Court “does not 3 focus on the admissibility of the evidence’s form so long as the contents are capable of 4 presentation in an admissible form at trial.” See Lomeli, 2019 WL 4695279, at *7 (internal 5 quotations and citations omitted). 6 Third, Emelyanenko objects to the timing of the declaration, arguing that Defendants 7 “elected to submit their largest by volume ‘declaration’ as part of their [r]eply so that Plaintiff 8 couldn’t respond to that.” Objs. at 2. This objection is OVERRULED because, as explained 9 above, Emelyanenko had the option to seek leave of Court to file a sur-reply, as he did in 10 connection with the prior motion to compel arbitration, or object to improper reply evidence, as he 11 has done here. 12 Fourth, Emelyanenko objects that the Schodt declaration “doesn’t shed a light on the 13 relevant issues.” Id. This objection is OVERRULED because the factual assertions contained in 14 the declaration bear on whether an arbitration agreement exists. 15 Fifth, Emelyanenko objects that “Schodt’s ‘testimony’ doesn’t establish how the signature 16 records are maintained/perpetuated or other relevant business practices.” Id. The Court construes 17 Emelyanenko’s objection as a challenge to Schodt’s qualifications to lay foundation for the 18 business records attached to his declaration. So construed, it is OVERRULED. Schodt declares 19 that he has “personal knowledge regarding . . . the online operating platform for . . . clients and 20 former clients, such as Defendant, that provides, among other things, newly hired employees their 21 onboarding documents and maintains employment records . . . .” Schodt Decl. ¶ 2. He also 22 declares that he is familiar with his company’s “processes for collecting, obtaining agreement with 23 respect to, and storing employee personnel records.” Id. This is sufficient. See Miller v. 24 Fairchild Indus., Inc., 885 F.2d 498, 514 (9th Cir. 1989) (explaining that “[t]he foundation 25 requirement for Rule 803(6) may be satisfied by the testimony of anyone who is familiar with the 26 manner in which the document was prepared, even if he lacks firsthand knowledge of the matter 27 reported, and even if he did not himself either prepare the record or even observe its preparation.”) 1 Sixth, Emelyanenko objects that Schodt does not support certain assertions in his 2 declaration with business records, citing Civil Local Rule 7-5. That rule provides: 3 (a) Affidavit or Declaration Required. Factual contentions made in support of or in opposition to any motion must be supported 4 by an affidavit or declaration and by appropriate references to the record. Extracts from depositions, interrogatory answers, requests 5 for admission and other evidentiary matters must be appropriately authenticated by an affidavit or declaration. 6

(b) Form. An affidavit or declaration may contain only facts, 7 must conform as much as possible to the requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument. Any 8 statement made upon information or belief must specify the basis therefor. An affidavit or declaration not in compliance with this rule 9 may be stricken in whole or in part. 10 11 Civil L.R. 7-5. The Court OVERRULES Emelyanenko’s objection because Schodt’s declaration 12 does not violate the local rule. 13 Emelyanenko also objects to the electronic DocuSign signature on the Schodt declaration. 14 Objs. at 3. The objection is OVERRULED. See Newton v. Am. Debt Servs., Inc., 854 F. Supp. 15 2d 712, 731 (N.D. Cal. 2012), aff’d, 549 F. App’x 692 (9th Cir. 2013) (explaining that DocuSign 16 is “a company that is used to electronically sign documents in compliance with the U.S. Electronic 17 Signatures in Global and National Commerce Act (ESIGN)” and that “[u]nder ESIGN, electronic 18 records and signatures that are in compliance with ESIGN are legally binding.”). 19 Emelyanenko’s remaining objections, which are not limited to the Schodt declaration, are 20 OVERRULED because Emelyanenko uses the purported objections as a vehicle to dispute certain 21 factual assertions rather than present a basis upon which the Court may properly sustain an 22 evidentiary objection. For example, Emelyanenko contends that his experience with the 23 onboarding process is different from what Schodt describes in his declaration. Id. at 3. He 24 contends that he has no record of the email prompting him to begin the onboarding process that 25 Schodt describes in his declaration. Id. He accuses Defendants of having failed to disclose or 26 destroyed facts and evidence that support his position. Id. at 4-5. He also raises a number of 27 factual contentions about “undue duress, threats and other forms of oppression” he suffered, about 1 executed the arbitration agreement, about when Defendants had notice of his claims before this 2 lawsuit, and about Strafach “publicly representing himself as [a] ‘hacker.’ ” Id. These are not 3 proper objections, and as such, are OVERRULED. Having resolved these objections and the 4 motion to strike as set forth above, the Court now turns to the motion to compel arbitration. 5 C. Motion to Compel Arbitration 6 If “there are genuine disputes of material fact as to whether the parties formed an 7 arbitration agreement, the court must proceed without delay to a trial on arbitrability and hold any 8 motion to compel arbitration in abeyance until the factual issues have been resolved.” Hansen, 9 1 F.4th at 672. “[A] court is not authorized to dispose of a motion to compel arbitration until after 10 factual disputes have been resolved . . . .” Id. at 671. As discussed below, material factual 11 disputes exist as to whether Defendants waived their right to compel arbitration or breached the 12 agreement such that further proceedings are necessary to resolve the question of arbitrability. 13 Emelyanenko declares that he delivered an arbitration demand on June 18, 2022. ECF 52 14 (“Emelyanenko Decl.”) ¶ 26. He provided a copy to Patel when he “appeared” at Emelyanenko’s 15 residence demanding that he sign “what appeared to be signature pages releasing Sudo and 16 Strafach from liability, as well as giving up [his] equity in Sudo.” Id. ¶ 39. Emelyanenko 17 declined to sign despite Patel’s representations that “those signatures were needed to initiate an 18 arbitration process.” Id. Patel kept the demand letter, took pictures of every page, and sent them 19 to Strafach. Id. Strafach acknowledged receipt. Id. 20 Defendants ignore this evidence, claiming that Emelyanenko does not “provide any 21 documentary evidence to support this claim . . . []or offer any details in the way of times, dates, or 22 the content of such an effort . . . or any evidence showing the demand was shared with 23 Defendants.” ECF 60 (“Reply”) at 9. Nonetheless, they dispute it. Strafach declares that he 24 “reviewed the arbitration demand that [Emelyanenko] attached to his Opposition[,]” “do[es] not 25 recall ever receiving this arbitration demand,” and does not “have any records that show [he] 26 received it prior to [Emelyanenko] initiating this lawsuit.” ECF 60-2 (“Supp. Strafach Decl.”) ¶ 5. 27 /// 1 Patel declares the same:

2 [Emelyanenko] states that I received his arbitration demand. I reviewed the arbitration demand that he attached to his Opposition. 3 I do not recall ever receiving this arbitration demand, nor do I have any records that show I received it prior to [Emelyanenko] initiating 4 this lawsuit. 5 See ECF 60-1 (“Supp. Patel Decl.”) ¶ 5. 6 Defendants argue that “[e]ven if [Emelyanenko] had shared the arbitration demand with 7 Defendants[,]” they had no obligation to initiate the arbitration on Plaintiff’s behalf. Reply at 10; 8 see also MTC at 21. The two cases on which Defendants rely for this proposition, however, are 9 inapposite. In Shorts v. Parsons Transportation Group, the agreement at issue provided that 10 “[a]ny party to an employment dispute may initiate mediation by filing Mediation/Arbitration 11 Request Form with the Parsons Dispute Resolution Specialist.” 679 F. Supp. 2d 63, 68 (D.D.C. 12 2010). Unlike the agreement in Shorts, the Dispute Resolution Agreement at issue here provides:

13 Employee understands that to bring a claim under this Agreement, Employee must provide, by mail or in-person delivery, a written 14 statement of their claim to the Party against whom the claim is being made. Employee also understands that they have the right to be 15 represented by an attorney in the arbitration of any claim under this Agreement, but Employee is not required to have an attorney. 16 Employee further understands that Employee must present any claim in arbitration before the statute of limitations expires for that 17 type of claim.

18 At the beginning of any arbitration process under this Agreement, Employee and the Company or PEO will need to select an arbitrator 19 by mutual agreement. Such an arbitrator shall be a retired California Superior Court Judge, or another qualified and impartial person that 20 Employee and the Company or PEO decide upon. In the event Employee and the Company or PEO cannot agree on the selection of 21 an arbitrator, they will select an alternative dispute resolution provider and request from that provider a list of an odd number of 22 potential arbitrators. From that list Employee and the Company or PEO will alternatively strike arbitrators, with the Company or PEO 23 going first, until one arbitrator is left. That arbitrator shall be the arbitrator who will hear our case. 24 25 Dispute Resolution Agreement at 2. At a minimum, then, assuming Emelyanenko in fact 26 delivered written notice to Defendants as he declares, that would have triggered Defendants’ 27 obligation to engage in the selection of a mutually agreeable arbitrator, even if they had no 1 Ohio Plumbing v. Fiorilli Construction is also of little help to Defendants. In that case, the 2 || issue before the Court was whether “a defendant must initiate arbitration proceedings before it can 3 seek a stay of litigation pending arbitration.” 111 N.E.3d 763, 770 (Ohio Ct. App. 2018). That 4 issue is distinct from the one Emelyanenko raises here, 1.e., whether Defendants ignored his 5 written arbitration demand. 6 Because the record evidence discussed above presents a genuine dispute of material fact as 7 || to whether Defendants waived their arbitration rights or breached the agreement they now seek to 8 || enforce, further proceedings are necessary. See Hansen, | F.Ath at 672. For this reason, the Court 9 does not reach the remaining arguments in the briefing on the motion to compel arbitration at this 10 || time. 11 IV. CONCLUSION 12 For the reasons set forth above, the Court DEFERS RULING on the motion to compel 5 13 arbitration pending further proceedings. Emelyanenko’s objections to evidence are 14 OVERRULED, and his motion to strike is DENIED. The parties shall file a joint case 15 management conference statement by no later than noon on October 3, 2024. In addition to 16 || complying with the Standing Order for all Judges of the Northern District of California and this 3 17 Court’s Standing Order for Civil Cases, the parties shall include their respective positions on S 18 whether a jury or bench trial, or some other proceeding, is appropriate to resolve the motion to 19 compel arbitration. The Court will hold a case management conference on October 10, 2024 at 20 10:00 a.m. If the parties intend to proceed to trial, they shall be prepared to address the anticipated 21 length of trial, the number of witnesses, and scheduling. 22 IT IS SO ORDERED. 23 Dated: September 27, 2024 24 □ □ 7 25 :

ARACELI MARTINEZ-OLGUIN

26 United States District Judge 27 28