                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 13 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER ALARCON,                             No.   16-55523

              Plaintiff-Appellant,               D.C. No.
                                                 3:15-cv-00992-LAB-KSC
 v.

VITAL RECOVERY SERVICES, INC.                    MEMORANDUM*
and GALAXY ASSET PURCHASING,
LLC,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                     Argued and Submitted December 4, 2017
                              Pasadena, California

Before: D.W. NELSON and REINHARDT, Circuit Judges, and STEEH,** District
Judge.

      The district court concluded that there was a valid agreement to arbitrate

between the parties that encompassed the dispute at issue, see Knutson v. Sirius

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
XM Radio Inc., 771 F.3d 559, 564-65 (9th Cir. 2014), and granted Defendants’

motion to compel arbitration. Although the FAA “embodies the national policy

favoring arbitration[,] . . . the liberal federal policy regarding the scope of

arbitrable issues is inapposite when the question is whether a particular party is

bound by the arbitration agreement.” Norcia v. Samsung Telecomms. Am., LLC,

845 F.3d 1279, 1291 (9th Cir. 2017) (citations omitted). A district court should not

decide as a matter of law that the parties entered into an agreement to arbitrate

when there is a genuine issue of fact concerning the formation of any agreement.

See Three Valleys Mun. Water Dist. v. E.F. Hutton & Co., 925 F.2d 1136, 1141

(9th Cir. 1991); see also Cordas v. Uber Techs., 228 F.Supp.3d 985, 989 (N.D.

Cal. 2017). “The district court, when considering a motion to compel arbitration

which is opposed on the ground that no agreement to arbitrate had been made

between the parties, should give to the opposing party the benefit of all reasonable

doubts and inferences that may arise.” Three Valleys, 925 F.3d at 1141 (citation

omitted); see also Cordas, 228 F.Supp.3d at 989.

      The district court clearly erred in finding that the Defendants met their

burden of proving the existence of an agreement to arbitrate by a preponderance of

the evidence. See Knutson, 771 F.3d at 565. Defendants provided no facts

supporting their assertion that Galaxy had been assigned Beneficial’s contractual


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rights and thus was a party to an agreement to arbitrate with Alarcon. Defendants

offered only a Declaration by an “authorized representative” of Galaxy that she

was authorized to review Galaxy’s files. The Declaration is both insufficient and

inadmissible.

      California law does not mandate a particular form to show a valid

assignment, but the evidence must be sufficient to show that the owner of a right

manifested an intent to transfer that right. See Cockerell v. Title Ins. & Trust Co.,

42 Cal.2d 284, 291 (1954) (in bank); see also Cobb v. S.F. Residential Rent

Stabilization and Arbitration Bd., 98 Cal.App.4th 345, 352-53 (2002). The

Declaration contains only the legal conclusion that “[i]n November of 2011 Galaxy

became the assignee of certain assets of Beneficial [] including [Alarcon’s]

consumer loan account.” It contains no facts to support this conclusion. It is not

even clear that the Declarant reviewed any of Galaxy’s business records to reach

this conclusion. There is no evidence at all that Beneficial assigned its rights to

Galaxy or any other intermediary assignee.

      Moreover, the Declaration’s legal conclusion is inadmissible in any form.

Although the Declaration might have served to authenticate actual business records

had Defendants attached any, the Declaration itself is not an admissible business

record or summary of business records because it was prepared for litigation and


                                           3
not regularly kept as part of the practice of any business. Fed. R. Evid. 803(6). The

Declaration is likewise not an admissible summary because Defendants have not

alleged that any records are too voluminous to be conveniently examined, nor have

they provided originals or duplicates as required. Fed. R. Evid. 1006. Finally,

because the legal conclusion is offered to prove the content of business records that

allegedly document assignment, it is inadmissible unless Defendants produce the

original records. Fed. R. Evid. 1002. They did not produce those records here.

      Because there was no admissible evidence of an agreement to arbitrate

between the parties, we REVERSE and REMAND with instructions to reinstate

Alarcon’s complaint and to deny Defendants’ motion to compel arbitration.




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