Filed 7/1/21 White v. Overland Terrace Healthcare Centre CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MALISSA WHITE, B306619
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 19STCV35955)
OVERLAND TERRACE
HEALTHCARE CENTRE, LP,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark V. Mooney, Judge. Affirmed.
De Castro Law Group, José-Manuel A. de Castro and Lori
V. Minassian for Defendant and Appellant.
The Ryan Law Group and Andrew T. Ryan for Plaintiff and
Respondent.
******
A former employee sued her employer for whistleblower
and related claims. The employer petitioned the trial court to
compel the former employee to arbitrate her claims, but the
arbitration agreement she signed did not identify the employer as
a party to the agreement. The trial court denied the petition to
compel arbitration after concluding that the employer did not
meet its burden of establishing an agreement to arbitrate
between the employer and the former employee. Because this
was correct, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In March 2018, Malissa White (plaintiff) started working as
a nurse at a nursing home facility called Country Villa South.
At the time she was hired, plaintiff signed an Agreement
To Be Bound By Alternative Dispute Resolution Policy (the
agreement) along with an Alternative Dispute Resolution Policy
(the policy). The agreement and the policy purport to bind
plaintiff and her “employer or any of its employees or officers” to
arbitrate “any and all claims arising out of the employment
relationship,” but never name or identify the employer beyond
calling it the “Company.” In the signature block, the “Company”
is identified as “Country Villa [redacted],”1 and the signatory was
the Director of Staff Development for Country Villa South.
During the ensuing 15 months that plaintiff worked at
Country Villa South, she received paychecks either from
1 In the available copy of the agreement, there appears to be
a word after “Villa,” but it is blocked out by a square
discoloration.
2
Overland Terrace Healthcare & Wellness Center, LP (Overland)
or jointly from Overland and Rockport Administrative Services,
LLC (Rockport). Rockport provided “certain professional and
back-office services” for Overland.
About a year into her employment at Country Villa South,
plaintiff encountered what she believed were fraudulent
Medicare billing practices. She made a report to her supervisor,
but resigned in May 2019 when the “stress” of being “in the
middle of a Medicare fraud scheme” became “too much” for her.
II. Procedural Background
A. Complaint
On October 8, 2019, plaintiff sued Rockport for (1)
constructive termination in violation of public policy, (2)
intentional infliction of emotional distress, and (3) retaliation in
violation of Health and Safety Code section 1278.5 as well as
Labor Code section 1102.6.
On January 16, 2020, plaintiff added Overland as a
defendant by substituting it for a fictitiously named defendant.
B. Motions to compel arbitration
1. First motion to compel
On November 13, 2019, Rockport filed a motion to compel
arbitration of plaintiff’s claims. Following full briefing and a
hearing in February 2020, the trial court denied the motion. The
court concluded that there was “no . . . contractual agreement to
arbitrate” between plaintiff and Rockport because the agreement
was signed by plaintiff and Country Villa South, and because
Rockport produced no “evidence of the connection between
Rockport and Country Villa South.”
2. Second motion to compel
On April 28, 2020, Overland filed a motion to compel
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arbitration of plaintiff’s claims. Following another full round of
briefing, the trial court also denied that motion. The court
concluded that the second motion to compel suffered from “the
same fundamental problem” as the first motion—namely, that
there was only evidence of an arbitration agreement between
plaintiff and Country Villa South, and no evidence connecting
Overland with Country Villa South, which, as far as the court
could tell, was merely “a location” and not “any type of a legal
entity.”
C. Appeal
Overland timely appealed from the trial court’s order.2
DISCUSSION
Overland asserts that the trial court was wrong to deny its
motion to compel arbitration of plaintiff’s claims. (Code Civ.
Proc., § 1294, subd. (a) [authorizing immediate appeal from such
order].)
I. Pertinent Law
Because arbitration is a “‘matter of consent’” (Stolt-Nielsen
S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662, 681;
American Express Co. v. Italian Colors Restaurant (2013) 570
U.S. 228, 232 [“matter of contract”]), a trial court may compel
arbitration only if “it determines that an agreement to arbitrate
the controversy exists.” (Code Civ. Proc., § 1281.2; Long v.
2 Rockport joined in the second motion to compel arbitration,
and also appealed from the trial court’s order denying that
motion. Plaintiff moved to dismiss Rockport’s appeal on the
ground that its joinder in the second motion to compel constituted
an improper motion for reconsideration of the trial court’s prior
denial of Rockport’s first motion to compel; Rockport did not
oppose the motion. We granted plaintiff’s motion to dismiss
Rockport’s appeal.
4
Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 861 [this is a
“‘“threshold question”’”]; Cruise v. Kroger Co. (2015) 233
Cal.App.4th 390, 396 [same].) The party moving to compel
arbitration bears the burden of proving the existence of an
arbitration agreement between the movant and the party to be
compelled. (Pinnacle Museum Tower Assn. v. Pinnacle Market
Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle);
Rosenthal v. Great Western Fin. Securities Corp. (1996) 14
Cal.4th 394, 413; Marenco v. DirecTV LLC (2015) 233
Cal.App.4th 1409, 1416 (Marenco); Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth (1985) 473 U.S. 614, 627 [court must
“determine whether the parties agreed to arbitrate that
dispute”].) The identity of the parties is critical because state
contract law governs the threshold issue of whether an
agreement to arbitrate exists (Pinnacle, at p. 236), and a contract
is valid under California law only if it names the parties. (Civ.
Code, § 1558.) This is precisely why, as a general rule, only
signatories to an arbitration agreement may invoke or be bound
by that agreement. (Rowe v. Exline (2007) 153 Cal.App.4th 1276,
1284 (Rowe); accord, Marenco, at p. 1416 [California Arbitration
Act presumes that “proceeding to compel arbitration will be
between the signatories to the agreement”].)
Where, as here, a trial court’s finding that an arbitration
agreement does not exist is based on disputed facts, we review
that finding for substantial evidence. (Banner Entertainment,
Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357; Laswell v.
AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1406; Vita
Planning & Landscape Architecture, Inc. v. HKS Architects, Inc.
(2015) 240 Cal.App.4th 763, 772.) And where, as here, the
substantial evidence challenge is brought by the party with the
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burden of proof below, we may overturn factual findings only if
“‘the evidence compels a finding in favor of the appellant as a
matter of law’” because the evidence “‘was (1) “uncontradicted
and unimpeached” and (2) “of such character and weight as to
leave no room for judicial determination that it was insufficient
to support [those] finding[s].’”” (Dreyer’s Grand Ice Cream, Inc. v.
County of Kern (2013) 218 Cal.App.4th 828, 838; accord Agam v.
Gavra (2015) 236 Cal.App.4th 91, 108 (Agam).)
II. Analysis
A. Overland failed to meet its burden
Overland has not demonstrated that the evidence compels
a finding that it entered into an agreement to arbitrate with
plaintiff. To be sure, the undisputed evidence may well compel a
finding that plaintiff had an employment relationship with
Overland as well as a finding that plaintiff signed an employment
agreement with “Country Villa [redacted].” But the evidence is
far from overwhelming enough to compel a finding that the
“Country Villa [redacted]” with whom plaintiff agreed to arbitrate
disputes is the same entity as Overland.
At best, the evidence on this point is conflicting.
On the one hand, some evidence might support a finding
that “Country Villa [redacted]” and Overland are one and the
same. Overland’s Licensed Nursing Home Administrator
declared that Overland (1) does “business under the fictitious
business name ‘Country Villa South,’” and (2) “has maintained a
registration of its use of this fictitious name on file with the
County of Los Angeles.” But the trial court excluded the first
statement as lacking foundation, and the court’s exclusion of the
first statement binds us because Overland has not challenged
that evidentiary ruling on appeal. (Dina v. People ex rel. Dept. of
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Transportation (2007) 151 Cal.App.4th 1029, 1048 [failure to
challenge leaves evidentiary ruling intact], disapproved on other
grounds in Weiss v. People ex rel. Dept. of Transportation (2020) 9
Cal.5th 840, 845, fn. 18.) And, as described below, the second
statement is incorrect. Also, the Department of Public Health’s
website shows that the licensee for “Country Villa South
Convalescent Center” is Overland. Overland’s status as licensee
merely establishes that it is the entity responsible for that
“licensed facility” (Cal. Code Regs., tit. 22, § 72501, subd. (a)) and
must “employ an adequate number of qualified personnel to carry
out all functions of the facility” (id. at subd. (e)). However, this
status does not mean that plaintiff was one of those minimally
required employees (rather than being employed by someone else
and assigned to work at the County Villa South Convalescent
Home by another employer), particularly given that she received
some paychecks from Rockwell as a joint payor. What is more,
the Department of Public Health listing for “Country Villa South
Convalescent Home” also shows that the management company
is “Country Villa Service Corp dba Country Villa Health
Services,” which further muddies the waters regarding which
exact “Country Villa [redacted]” entity is the entity with whom
she entered the agreement. At bottom, Overland’s role as the
licensee does not definitively establish that “Country Villa
[redacted]” is Overland.
On the other hand, a substantial quantum of evidence
supports a finding that “Country Villa [redacted]” and Overland
are not one and the same. Contrary to what Overland’s
administrator declared, Overland did not register “Country Villa
South” as a fictitious business name with the Los Angeles County
Registrar-Recorder’s office. Overland’s failure to follow the basic
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procedures necessary to operate under a fictitious business name
means that Overland cannot “maintain any” lawsuits for breach
of contracts entered into by Country Villa South (Bus. & Prof.
Code, § 17918), a result that would leave Overland powerless to
enforce breaches of contracts entered into between Country Villa
South and its patients and suppliers. The trial court could
reasonably infer that Overland would not rationally undertake
such a risk and that, as a result, Overland is not actually the
same entity as “Country Villa [redacted].” Nor can Overland be
brought into the agreement as an entity somehow affiliated with
“Country Villa [redacted]”; that is because the agreement, by its
express terms, names “Country Villa [redacted]” as plaintiff’s
“employer”/the “Company” and expressly limits its application to
the “employer or any of its employees or officers.” This plain
language controls. (Civ. Code, § 1639.)
Because the evidence in support of a finding that “Country
Villa [redacted]” and Overland are synonymous is at best
conflicting, the record does not compel that finding. (Agam,
supra, 236 Cal.App.4th at p. 108 [appellant’s evidence must be
“uncontradicted”].)
B. Overland’s counterarguments
Overland resists our conclusion with several arguments
that can be grouped into three different categories.3
3 At oral argument, Overland argued that the trial court was
required to rule in its favor because, at the hearing on the first
motion to compel filed by Rockport, the court stated that
Overland “apparently [has] a contract with” plaintiff, “but that’s
not where we are right now.” However, a trial court is not bound
by its preliminary statements regarding a motion that had yet to
be filed based on evidence that had yet to be presented.
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1. Plaintiff did not carry her burden
Overland asserts that it should prevail as a procedural
matter because plaintiff never submitted a declaration opposing
the motion to compel arbitration. This assertion lacks merit. As
noted above, it is the moving party—here, Overland—who bears
the initial “burden of proving the existence of an arbitration
agreement”; it is only when that burden is met that the burden
then shifts to the opponent to “prov[e] any defense, such as
unconscionability.” (Pinnacle, supra, 55 Cal.4th at p. 236.)
Overland proclaims that it discharged its burden because it
proved the existence of an arbitration agreement, but the initial
burden is discharged only if the movant proves the existence of
an arbitration agreement between the movant and the person to
be compelled to arbitration. (Cf. Condee v. Longwood
Management Corp. (2001) 88 Cal.App.4th 215, 219 [attaching
copy of pertinent agreement sufficient].) Because, as noted
above, substantial evidence supports the finding that Overland
did not prove the existence of an arbitration agreement that it
could enforce, the burden never shifted to plaintiff.
2. Overland is a party to the agreement
Overland offers four arguments in support of its position
that it was a party to the agreement.
First, Overland boldly declares that there is “no disput[e]”
that it was operating under the fictitious business name Country
Villa South. To the contrary, this issue is hotly disputed and the
evidence on this issue, as noted above, is also in conflict. Indeed,
the Director of Staff Development for Country Villa South who
signed the agreement for the “Company” did not even state in her
declaration on Overland’s motion to compel arbitration which
entity employed her.
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Second, Overland contends that plaintiff “knew full well”
with whom she was agreeing to arbitrate her employment-related
claims. This contention is doubly meritless. Overland offers no
evidence to support its view as to what plaintiff subjectively
“knew”; all it advances is speculation, and “speculation is not
evidence”—let alone evidence of sufficient force to compel a
finding in Overland’s favor. (Wise v. DLA Piper (US) (2013) 220
Cal.App.4th 1180, 1188.) And even if Overland did have evidence
to support its assertion, plaintiff’s “uncommunicated subjective
intent” or knowledge “is irrelevant” to the interpretation of the
contract. (Reigelsperger v. Siller (2007) 40 Cal.4th 574, 579;
Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565,
1587 [“[m]utual assent to contract is based upon objective and
outward manifestations of the parties”].)
Third, Overland asserts that plaintiff’s continued
employment with knowledge of the agreement is sufficient to
compel arbitration between plaintiff and Overland. Although an
employee will be deemed to consent to arbitration with her
employer if she continues working after being notified of an
arbitration agreement between herself and the employer (Diaz v.
Sohnen Enterprises (2019) 34 Cal.App.5th 126, 130; Pinnacle,
supra, 55 Cal.4th at p. 236), this principle is irrelevant where, as
here, the arbitration agreement is between the employee and
some other entity not proven to be her employer.
Lastly, Overland argues that the allegations in plaintiff’s
complaint that Overland and Rockport are her “joint employers”
constitutes a judicial admission that binds plaintiff to arbitrate
her employment-related claims with Overland. Even if we
assume this to be a valid judicial admission, it does not aid
Overland because the agreement is between plaintiff and
10
Country Villa [redacted], and plaintiff makes no allegations about
the relationship between her “joint employers” and Country Villa
[redacted].
3. Even as a nonsignatory to the agreement,
Overland may still enforce the agreement
Overland offers two arguments in support of its position
that it may still invoke the agreement even if it is not a
signatory.
First, Overland asserts that it may enforce the agreement
because it was signed by Country Villa [redacted], and Country
Villa South is its agent. To be sure, a nonsignatory to an
arbitration agreement may enforce that agreement if it is acting
as an agent of a signatory. (Garcia v. Pexco, LLC (2017) 11
Cal.App.5th 782, 788; Marenco, supra, 233 Cal.App.4th at p.
1417.) But plaintiff has not alleged—and Overland has not
introduced any evidence to support a finding—that Overland is
now acting as Country Villa [redacted]’s agent. (Accord, Jensen v.
U-Haul Co. of California (2017) 18 Cal.App.5th 295, 304 [“Every
California case finding nonsignatories to be bound to arbitrate is
based on facts that demonstrate, in one way or another, the
signatory’s implicit authority to act on behalf of the
nonsignatory”].)
Second, Overland contends that plaintiff is equitably
estopped from contesting its motion to compel. To be sure, the
doctrine of equitable estoppel may empower a nonsignatory to a
contract containing an arbitration clause to invoke that clause
against a signatory if the signatory sued the nonsignatory for
claims ‘“dependent upon, or founded in and inextricably
intertwined with”’ that contract. (JSM Tuscany, LLC v. Superior
Court (2011) 193 Cal.App.4th 1222, 1238; accord, Rowe, supra,
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153 Cal.App.4th at pp. 1286-1287; Boucher v. Alliance Title Co.
(2005) 127 Cal.App.4th 262, 271-272; Marenco, supra, 233
Cal.App.4th at p. 1417.) But here, plaintiff’s claims are not
grounded in any contract; instead, they are based on statutory
employment law and common law torts. Because plaintiff is not
“using the terms or obligations of [the] agreement as the basis for
[her] claims . . . , while at the same time refusing to arbitrate . . .
under another clause of that same agreement,” equitable estoppel
does not apply. (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th
209, 221.)
* * *
Because we have concluded that Overland may not invoke
the arbitration agreement at all, we have no occasion to consider
plaintiff’s rejoinder that arbitration is unwise because it might
lead to inconsistent rulings under Code of Civil Procedure section
1281.2, subdivision (c).
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DISPOSITION
The order is affirmed. Plaintiff is entitled to her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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