Filed 10/13/20 Whynaught v. Regal Medical Group CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANDREW WHYNAUGHT,
Plaintiff and Respondent, G058253
v. (Super. Ct. No. 30-2018-00987851)
REGAL MEDICAL GROUP, INC., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Layne H.
Melzer, Judge. Affirmed.
Doll Amir & Eley, Michael M. Amir and Lloyd Vu for Defendant and
Appellant.
Paoli & Purdy and Court B. Purdy for Plaintiff and Respondent.
* * *
Regal Medical Group (Regal) appeals from the trial court’s order denying
its motion to compel Andrew Whynaught to arbitrate his wrongful termination claim.
Regal contends the court erred in finding it failed to establish the parties agreed to
arbitration. As we explain, substantial evidence supports the trial court’s factual
determination that Regal “has not met its burden to show the existence of an arbitration
agreement” between the parties. The court was also correct as a matter of law when it
found no implied agreement to arbitrate, relying on this court’s decision in Mitri v. Arnel
Management Co. (2007) 157 Cal.App.4th 1164 (Mitri). We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Regal began implementing an alternative dispute resolution program for
employment disputes in the spring of 2016. As part of the implementation process, Regal
updated its employee handbook (Handbook or Employee Handbook) to describe the
program as follows: “This program was created to provide you and the Company a
mechanism for resolving disputes which is less costly and time consuming than resorting
to the courts. The Company and all employees of the Company are subject to this
alternative dispute resolution program.”
The Handbook did not include the terms of the dispute resolution program,
which was embodied in a separate agreement. As the Handbook explained, “As part of
this program, you will be asked to read and execute the Company’s Mutual Arbitration
Agreement [MAA] which sets forth more detail regarding this program.” According to
Whynaught, he never received or executed the MAA.
Whynaught had been employed at Regal as a vocational nurse and
behavioral case manager since July 2015 so his employment predated the initiation of the
MAA. On August 4, 2016, as reflected in his personnel file, Whynaught executed and
returned a document entitled “Handbook Acknowledgment” to Regal’s human resources
department. The one-page form consisted of several paragraphs regarding receipt of the
2
Handbook, including one stating, “I acknowledge, by my signature below, that the
Company has implemented an alternative dispute resolution program, and I agree to
execute and be bound by the Company’s Mutual Arbitration Agreement.”
On November 27, 2016, Whynaught suffered serious injuries when he was
rear-ended by a hit and run driver. Whynaught’s injuries included a “herniated disc with
nerve impingement,” which required spinal fusion surgery. His doctor placed him under
“no work” restrictions during a lengthy rehabilitation process. Whynaught kept Regal
apprised of his condition and the course of his medical treatment, including by written
communications from his physicians.
Whynaught claimed Regal wrongly terminated him in July 2017, for
“unauthorized leave of absence since June 1, 2017,” and falsely accused him of forging a
doctor’s note regarding his continuing inability to work. Whynaught asserted Regal
ignored his “doctor’s note for May 2017” and his doctor’s “progress report” for June that
stated his convalescence “‘will be up to 3 months,”’ and verified that the “‘Patient is
unable to work during this time.’” Regal also refused to engage in efforts “to clarify the
obvious mistake in their accusation of fraud,” according to Whynaught.
Whynaught sued Regal in the superior court in April 2018, alleging
disability discrimination and failure to provide reasonable accommodation under the
California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), as well as
wrongful termination in violation of public policy. Regal answered the complaint in
June 2018, and filed its motion to compel Whynaught to arbitrate his claims under the
MAA in July 2019.
In support of its motion, Regal submitted the declaration of Teresa Lugo, an
“Employee Services Manager” whose responsibilities included “Human Resources
(‘HR’) issues for Regal.” Attached to Lugo’s declaration was the Handbook
Acknowledgment form that Whynaught signed in August 2016 and several excerpts from
3
the Handbook regarding the MAA, including the Handbook’s statement advising
employees they were required to “execute” the MAA.
Lugo’s declaration referenced two e-mails she did not author or adequately
authenticate. One email that was not dated appears to be a message from a “Jay
Schwanz” to “Sandra Finley” and “Kimberly Powell,” copying also “Juliette Sullivan”
and “Stephanie Cohen.” Lugo did not identify Schwanz in her declaration, nor any of the
recipients except Cohen, whom she described as “Regal’s Senior Human Resource
Manager.” The message was “FYI – the EE Handbook was sent out Wednesday
evening,” and closed with Schwanz’s first name, “Jay.”
Schwanz’s e-mail appears to forward to his four recipients a May 4, 2016,
e-mail authored by Cohen, who, in turn, had addressed her message to two recipients,
herself and Sullivan. Although addressed in the e-mail header to herself and Sullivan, the
body of Cohen’s e-mail stated, “Attention All Employees, [¶] We are pleased to send you
the new 2016 . . . Employee Handbook and recently implemented, Mutual Arbitration
Agreement. To help you better understand this new program, [we have] simplified the
information in a one-page summary preceding the Mutual Arbitration Agreement.”
The e-mail continued: “Attached you will find the following documents
that require your signature. These documents need to be returned to Employee Services.”
Cohen identified the two documents as “Employee Handbook Receipt” and “Mutual
Arbitration Agreement, page 6.” Lugo’s declaration also referenced copies of several
documents she asserted were attached to Cohen’s e-mail, including the six-page MAA.
Page 6 of the MAA included, among other language, an express release or integration
clause stating, “By Signing Below, Employee Acknowledges that: [¶] . . . [¶]
Employee is not relying on any promises or representations by the Company except those
contained in this Agreement.” (Original boldface.) Page 6 of the MAA also provided a
designated space for the “Employee” and a Regal representative to give express assent to
the MAA by signing and dating it.
4
Cohen’s May 4 e-mail also included, in addition to the Handbook Receipt
and the MAA, a third document “attached for your reference,” which she described as
“the detailed JAMS (Judicial Arbitration and Mediation Services) Employment
Arbitration Rules & Procedures.” Cohen’s e-mail did not indicate it attached the actual
Employee Handbook, but provided instructions for finding the Handbook on the
company’s internal “intranet home page.” Cohen’s e-mail closed with a final directive in
boldface type to return “the required two forms to your Supervisor/Manager.”
Lugo’s declaration referenced a second e-mail that appears to forward
another e-mail from Cohen. As with the first e-mail from “Schwanz,” Lugo did not
indicate how anyone transmitted Cohen’s forwarded e-mails or their contents to
Whynaught—who was not named as a recipient in the e-mail header, nor in the body of
any of the e-mails. Additionally, unlike Jay Schwanz’s e-mail forwarding Cohen’s May
4 e-mail, this second e-mail submitted by Lugo was undated and had the “From,” “To,”
and “Subject” fields in the header blacked out. The entire body of the message was
similarly redacted, leaving only Cohen’s e-mail. Cohen’s second e-mail, dated May 16,
2016, was thus forwarded, if at all, by an unknown person to unknown recipients.
Cohen’s second e-mail identified her as the sender, but did not identify the
recipient or recipients—there is no recipient field in the header. The “Subject” field of
the e-mail states: “Attention Required by ALL employees New 2016 Employee
Handbook & Arbitration Agreement DUE FRIDAY MAY 20th,” with the subject field
trailing off from there in ellipses (“. . . .”). The body of the e-mail begins in large font:
“Gentle Reminder – forms due back by Friday 05/20.” The remainder of the e-mail
reverts to a smaller font and states, “Attention All Employees (excluding agency temps)”
before repeating much of Cohen’s May 4 e-mail. It states again that “the following
documents . . . require your signature,” again identifying the Handbook Acknowledgment
and page 6 of the MAA. And it closes with the same boldface directive to “return
the[se] required two forms to your Supervisor/Manager.”
5
The header attached to Cohen’s May 4 and May 16 e-mails indicated three
PDF files were attached to each: (1) the Handbook Acknowledgment; (2) the JAMS
rules; and (3) the “2016 Arbitration Agreement & Memo,” which Lugo identified in her
declaration as the MAA.
In opposing Regal’s motion to compel arbitration, Whynaught disputed
receiving either of Cohen’s e-mails attaching the MAA, which the parties agree he never
signed. He stated in his declaration, “I don’t recall receiving an email in May of 2016,
from Stephanie Cohen introducing a new Arbitration Program with any attachments to
review, sign and return to Human Resources.” He testified that “[r]eceipt of [Regal’s]
Motion [to compel arbitration] was the first time I ever saw the MAA.” Although
Regal’s counsel disputed this conclusion during oral argument, we believe this statement
raised an inference that Whynaught never received the MAA via e-mail or by any other
means.
Whynaught also testified that the absence of a signed copy of page 6 of the
MAA in his personnel file was “consistent with my recollection that I was never trained
on this agreement, was unaware that it had been implemented and never reviewed it
during my employment.” He observed “in my experience” that “the diligent nature of the
human resources department [at] Regal . . . never allowed me to ignore signing off on
training, annual reviews or any employment related records.”
Whynaught testified he received training regarding the Handbook in
June 2016. He did not recall why he signed the Handbook Acknowledgment in August
2016, well after the May 2016 Cohen e-mails on which Regal relied to establish he
received notice of the MAA’s terms, and two months after his June training session
regarding the Handbook. He testified that since he began working at Regal in 2015, the
Handbook was available “as a resource should a question arise regarding employment
issues.” He reiterated that he had never “reviewed or signed” the MAA.
6
After a hearing, the trial court denied Regal’s motion to compel arbitration,
finding Regal “has not met its burden to show the existence of an arbitration agreement.”
The court ruled “[a]s an initial matter” that Regal did not “show that
Plaintiff received . . . the two emails that attached the MAA,” nor had it presented
persuasive evidence “to show that Plaintiff read” or received the MAA. The court noted
that Lugo “testifie[d] that the emails were sent to all employees,” but found her
declaration regarding the e-mails “does not meet the requirements of the business records
exception. (Evid. Code, § 1271(a)-(d).)”
Alternatively, as a separate basis for its decision denying arbitration, the
court found that Regal “has not shown that even taking all of its evidence as true that
Plaintiff agreed to arbitrate.”
Specifically, the trial court found Whynaught’s “signature on the
Acknowledgment form is insufficient,” relying on this court’s decision in Mitri, supra,
157 Cal.App.4th 1164. The trial court held that when, as here and in Mitri, the company
handbook “contemplates the signing of a separate [arbitration] contract,” an “employee’s
acknowledgment of the handbook [is] insufficient to show an agreement to arbitrate.”
The trial court also analyzed the language in the MAA, which purportedly
made continued employment tantamount to implied consent to arbitrate. The trial court
held that, as in Mitri, language making arbitration a mandatory “condition of
employment” did not vitiate a company’s express statements that “all employees are
required to sign an arbitration agreement.” As noted above, the parties agree Whynaught
never signed the MAA. (Mitri, supra, 157 Cal.App.4th at pp. 1170-1171.) As we
explained in Mitri, the express signature requirement “completely undermines any
argument by defendants the [mandatory arbitration] provision in the handbook itself was
intended to constitute an arbitration agreement between [the company] and its
employees.” (Ibid.)
7
The trial court found legally ineffective the MAA’s mandatory arbitration
provision stating that no “affirmative signature” was required to ratify it, because
“several other conflicting documents” stated endorsement was necessary, including
Regal’s Handbook and its Acknowledgment form that Whynaught signed. The court also
found the MAA’s “no signature is needed” provision did not apply for an additional, fact-
based reason: the MAA itself stated that implicit employee ratification of arbitration
depended not only on “continued employment with the Company,” but also the
“Employee’s knowledge of [the MAA],” which the court found Regal had not
established.
The trial court did not reach Whynaught’s alternative claim that Regal
waived arbitration, if it applied, by litigating the case for more than a year before filing its
motion.
Regal appeals from the trial court’s order denying arbitration.
DISCUSSION
1. General Principles, Contentions, and Standard of Review
It is well established that arbitration is a matter of contract. (Sparks v. Vista
Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1517-1518.)
‘“‘“Although “[t]he law favors contracts for arbitration of disputes between parties”
[citation], “‘there is no policy compelling persons to accept arbitration of controversies
which they have not agreed to arbitrate . . . .’” [Citations.]’” [Citation.] “Absent a clear
agreement to submit disputes to arbitration, courts will not infer that the right to a jury
trial has been waived.”’” (Id. at p. 1518.)
“‘[W]hen a petition to compel arbitration is filed and accompanied by
prima facie evidence of a written agreement to arbitrate the controversy, the court itself
must determine whether the agreement exists and, if any defense to its enforcement is
raised, whether it is enforceable. Because the existence of the agreement is a statutory
8
prerequisite to granting the petition, the petitioner bears the burden of proving its
existence by a preponderance of the evidence.’” (Mitri, supra, 157 Cal.App.4th at
p. 1169, original italics; Code Civ. Proc., § 1281.2.)
Regal challenges the trial court’s factual determination that it failed to meet
its burden of proof to establish Whynaught received the MAA. Regal also argues that,
even if Whynaught never received a copy of the MAA, a binding arbitration agreement
existed based on his continued employment with notice of the agreement.
Our standard of review varies according to these respective factual and
legal challenges. When a trial court’s order denying arbitration “‘is based on a decision
of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the
court’s denial rests solely on a decision of law, then a de novo standard of review is
employed.”’ (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50,
60 (Avery).) “Interpreting a written document to determine whether it is an enforceable
arbitration agreement is a question of law subject to de novo review when the parties do
not offer conflicting extrinsic evidence regarding the document’s meaning.” (Ibid.)
2. Business Records Hearsay Exception
Regal’s initial challenge is governed by the substantial evidence standard
“because the motion turned on conflicting evidence regarding whether [Whynaught]
received and agreed to [Regal]’s arbitration policy.” (Avery, supra, 218 Cal.App.4th at
p. 60.) In support of its challenge, Regal contends in a footnote that the trial court erred
in finding that Lugo’s testimony did not establish Cohen’s e-mails fell within the
business records hearsay exception. We review a trial court’s evidentiary rulings for
abuse of discretion, including whether a proper foundation has been laid for the
admission of business records. (County of Sonoma v. Grant W. (1986) 187 Cal.App.3d
1439, 1450.)
Business records are admissible under Evidence Code section 1271 when
“(a) The writing was made in the regular course of a business; [¶] (b) The writing was
9
made at or near the time of the act, condition, or event; [¶] (c) The custodian or other
qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The
sources of information and method and time of preparation were such as to indicate its
trustworthiness.” (Ibid., italics added.)
Regal contends Cohen’s e-mails were not hearsay—and therefore did not
require a business records foundation—because they were “not offered to prove the truth
of any statements by Ms. Cohen.” We disagree. The relevant question was this: is it true
these e-mails were sent to and received by “all employees?” The accuracy of Cohen’s
opening address, with its implication that the e-mails reached all Regal employees, was
critical to Lugo’s claim that Cohen’s e-mail—with the attached MAA—was sent to and
received by Whynaught even though he was not a named recipient.
As to foundation, Lugo described her position at Regal, namely, “Senior
Employee Services Manager” with HR responsibilities, and then stated that she attached
to her declaration Cohen’s e-mails as “certain business records which are kept in the
ordinary course of business.” These conclusory statements were insufficient to satisfy
the requirements of Evidence Code section 1271. Lugo failed to address the “mode of
preparation” of Cohen’s e-mails to indicate how Cohen created them; nor did she explain
how they might have been transmitted to Whynaught when he was not identified in the
header as a recipient. Regal failed to lay the foundation required for admission of these
e-mails as a business record. The trial court therefore did not err in excluding them.
3. Substantial Evidence Supports the Trial Court’s Ruling
In any event, even if the e-mails had been admissible, substantial evidence
presented to the trial court supports its ruling. Whynaught produced ample evidence
from which the court could conclude he never received a copy of the MAA. He denied
“ever seeing” the MAA before receiving Regal’s motion to compel arbitration. This
statement unequivocally made his alleged receipt of the MAA a question of fact.
10
The evidentiary void created by Regal’s failure to explain how Cohen’s
e-mails could have reached Whynaught, when he was not an express e-mail recipient, left
the trier of fact free to conclude that Whynaught did not receive the emails. The trial
court’s ruling implicitly reflects it found Whynaught’s testimony credible. The testimony
of a credible single witness supports a ruling. (Consolidated Irrigation Dist. v. City of
Selma (2012) 204 Cal.App.4th 187, 201.) This was fatal to Regal’s implied contract
claim as the basis for its arbitration motion.
A. No Implied Contract, as a Factual Matter
Regal argues the court was required to conclude Whynaught impliedly
agreed to arbitrate his claims by continuing to work at the company. We disagree.
“[A]n agreement to arbitrate may be express or implied so long as it is
written.” (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 384 (Harris);
Code Civ. Proc., § 1281.) An implied contract may arise in combination with express
terms, as when a student by his or her conduct accepts written terms embodied in a
university’s website aimed at prospective students. (Kashmiri v. Regents of University of
California (2007) 156 Cal.App.4th 809, 816-817.) Consent to an arbitration contract may
be “implied-in-fact where . . . the employee’s continued employment constitutes her
acceptance of an agreement proposed by her employer.” (Harris, at p. 384.)
When conflicting inferences may be drawn from the evidence, as here,
whether an implied contract exists is a question of fact for the trial court to decide.
(Gorlach v. Sports Club (2012) 209 Cal.App.4th 1497, 1508.)
Regal premised its implied contract claim on a paragraph on page 6 of the
MAA. The paragraph stated in two sentences: “Employee understands that his/her
affirmative signature and/or acknowledgment of this Agreement is not required for the
Agreement to be enforced. If Employee begins or continues working for the Company
without signing this Agreement, this Agreement will be effective, and Employee will be
deemed to have consented to, ratified and accepted this Agreement through Employee’s
11
knowledge of it and Employee’s acceptance of and continued employment with the
Company.” (Italics added.)
This provision required the “Employee’s knowledge of” the arbitration
agreement for that agreement to be binding. Therefore, the trial court’s finding that
Regal had not met its burden to show Whynaught received the MAA supports the court’s
conclusion no arbitral contract was formed. The trial court’s ruling was correct.
As Mitri explained, an employee’s general knowledge by virtue of a
handbook that an employer is proposing to implement a dispute resolution program as
detailed in a separate agreement does not suffice to form a contract on the terms stated in
the separate agreement. In such instances, the handbook “only place[s] [employees] on
notice that they would be called upon to sign a separate binding arbitration agreement.”
(Mitri, supra, 157 Cal.App.4th at p. 1171.) The handbook is therefore only
“‘informational rather than contractual.’” (Harris, supra, 248 Cal.App.4th at p. 382.)
Of course, where the arbitration agreement is provided to the employee, his
or her “ch[oic]e not to read or take the time to understand these provisions is legally
irrelevant.” (Harris, supra, 248 Cal.App.4th at p. 383.) “An arbitration clause within a
contract may be binding on a party even if the party never actually read[s] the clause.”
(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 236 (Pinnacle).) Similarly, memoranda delivered to employees with
unilateral arbitration terms (e.g., “IT APPLIES TO YOU”) conditioned only on continued
employment may be effective when that condition is met, i.e., the employee continues to
work for the employer. (Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 130
(Diaz); Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420 (Craig).)
But in the absence of proof of delivery, Diaz and Craig are inapposite. As
the trial court found, Whynaught “was not told that his continued employment was
sufficient to constitute an agreement.” Substantial evidence supports that finding, where
12
the trial court could reasonably conclude Whynaught did not receive Cohen’s e-mails and
there was no proof Regal otherwise gave Whynaught a copy of the MAA.
Notably, Regal did not produce Cohen’s original e-mails, which might have
shown the recipients of her May 16 e-mail or that she had more than two recipients of her
May 4 e-mail. Nor, as noted above, did Regal provide any testimony about how Cohen’s
e-mails could have reached Whynaught, though he was not identified as a recipient.
Regal presented only Lugo’s declaration with her bare assertion that Cohen’s e-mails
were “company-wide.”
Under the substantial evidence standard on appeal, we must defer to the
trial court’s factual findings. (Winograd v. American Broadcasting Co. (1998)
68 Cal.App.4th 624, 632.) This applies with particular force where the evidence is
conflicting (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188).
Whynaught presented evidence he did not receive the e-mails or the MAA by other
means. “If weaker and less satisfactory evidence is offered when it was within the power
of the party to produce stronger and more satisfactory evidence, the evidence offered
should be viewed with distrust.” (Evid. Code, § 412.) We cannot say the trial court erred
in finding Regal did not meet its burden to show Whynaught’s receipt of the MAA and
agreement between the parties to arbitrate.
The general policy favoring arbitration “‘“‘cannot displace the necessity for
a voluntary agreement to arbitrate.”’”’ (Sparks, supra, 207 Cal.App.4th at p. 1518.) An
implied contract no less than an express contract requires a “meeting of the minds.”
(Mulder v. Mendo Wood Products, Inc. (1964) 225 Cal.App.2d 619, 632; accord,
Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887.) A contract implied in fact by
conduct requires as its essence the mutual agreement of the parties. (Unilab Corp. v.
Angeles-IPA (2016) 244 Cal.App.4th 622, 636.)
It follows that there can be no meeting of the minds when the employer
does not share the terms of its proposed arbitration agreement with the employee. The
13
cases on which Regal relies therefore do not apply. (E.g., Diaz, supra; 34 Cal.App.5th
126; Craig, supra, 84 Cal.App.4th 416; see also Harris, supra, 248 Cal.App.4th 373;
McLaurin v. Russell Sigler, Inc. (C.D. Cal. 2016) 155 F.Supp.3d 1042; Genesco, Inc. v.
T. Kakiuchi & Co., Ltd. (2d Cir. 1986) 815 F.2d 840.)
Pinnacle, cited by Regal, is also inapposite. It involved arbitration terms
formed under CC&Rs publicly recorded by a community developer, and therefore
applicable by constructive notice to the community homeowners’ association, though the
association had not (and could not have) yet elected any members at the time the CC&Rs
were recorded. As the trial court explained, Pinnacle is “wholly distinguishable” from
the employment context here. Moreover, there is no footing for constructive notice to
apply here where the MAA itself requires “the Employee’s knowledge of” the arbitration
agreement for it to apply. This condition presupposes that the employee was given the
agreement. The trial court found that did not occur here. Because substantial evidence
supports this conclusion, the court did not err in declining to compel arbitration for lack
of agreement.
B. No Implied Contract on Purely Legal Grounds Either
Apart from the trial court’s factually supported basis for denying
arbitration, the court was also correct on strictly legal grounds. As the court stated in its
ruling, “Putting this aside [lack of proof Whynaught received Cohen’s e-mails],
Defendant has not shown that even taking all of its evidence as true that Plaintiff agreed
to arbitrate.”
When there are “no facts in dispute, the existence of a contract is a question
we decide de novo.” (Harris, supra, 248 Cal.App.4th at p. 381.) In directing our
attention to page 6 of the MAA, and relying solely on the continued-employment-equals-
ratification-of-arbitration paragraph, Regal overlooks a key paragraph above that one, on
the same page. The paragraph states: “By Signing Below, Employee Acknowledges
14
that: [¶] . . . [¶] Employee is not relying on any promises or representations by the
Company except those contained in this Agreement.”
This language functions as an integration clause, precluding reference to
terms or representations by the parties outside the four corners of the MAA to add to or
vary its meaning. (Code Civ. Proc., § 1856; Founding Members of the Newport Beach
Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 953.)
But the integration clause is itself conditional, stating that it becomes effective with the
employee “Signing below.” The parties agree Whynaught never signed the MAA.
Consequently, even assuming arguendo that Whynaught received Cohen’s
e-mails and, with them, the attached MAA, the “continued employment” paragraph on
page 6 of the MAA, which purported to bind Whynaught to arbitration regardless of
whether he signed the MAA, did not vitiate Regal’s earlier representations in the
Handbook, the Handbook Acknowledgment, and in Cohen’s e-mails that signing the
MAA was “required.” As Mitri teaches, when an employer “reinforc[es] an intent to
have employees sign a separate arbitration agreement to effectuate [its] policy of
arbitrating employment claims,” mere continuation of employment does not constitute
assent to arbitration. (Mitri, supra, 157 Cal.App.4th at p. 1171.)
At the very least, as the trial court observed here, Regal muddied the waters
as to whether Whynaught’s signature was required before its new dispute resolution
program took effect. On page 6 of the MAA, Regal said no signature was required, only
continued employment (assuming notice). “In fact,” however, as the trial court noted in
its ruling, Regal “told [Whynaught] the opposite in several other conflicting documents.”
And the conditional integration clause on page 6 furnished no clarity in the absence of
Whynaught’s signature, suggesting Regal’s prior representations were still effective—
while at the same time contradicting the no-signature paragraph on the same page.
The Civil Code provides that “the language of a contract should be
interpreted most strongly against the party who caused the uncertainty to exist.” In this
15
case, that is the drafting party, Regal. (Civ. Code, § 1654; Mayhew v. Benninghoff (1997)
53 Cal.App.4th 1365, 1370.) In the absence of Whynaught signing off on arbitration as
Regal repeatedly said was necessary, we cannot say there was the “‘“clear agreement”’”
by the parties necessary “‘“to submit disputes to arbitration.”’” (Sparks, supra,
207 Cal.App.4th at p. 1518.) The trial court did not err in denying Regal’s motion.
DISPOSITON
The trial court’s order denying Regal’s motion to compel arbitration is
affirmed. Whynaught is entitled to his costs on appeal.
GOETHALS, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
16