Perez v. O'Gara Coach Co. CA2/1

Filed 3/20/23 Perez v. O’Gara Coach Co. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

VICTOR ANGELO PEREZ, B320273

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV38295)
v.

O’GARA COACH COMPANY, LLC,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Elihu M. Berle, Judge. Affirmed.
Kolar & Associates, Elizabeth L. Kolar and Benjamin T.
Runge for Defendant and Appellant.
Verum Law Group, Sam K. Kim, Yoonis Han; Mahoney
Law Group, Kevin Mahoney and John A. Young for Plaintiff and
Respondent.
____________________________
 O’Gara Coach Company, LLC (O’Gara) appeals from an
order denying its petition to compel arbitration. O’Gara’s petition
was based on arbitration provisions in a three-page dispute
resolution agreement (DRA). The trial court held that O’Gara did
not satisfy its burden to prove that respondent Victor Angelo
Perez, a former employee, had consented to arbitrate his wage
and hour claims. We affirm the trial court’s order because
O’Gara did not request a statement of decision, and therefore,
under the applicable standards of appellate review, O’Gara would
have had to demonstrate that, as a matter of law, the trial court
erred in not compelling arbitration. O’Gara has failed to do so.
The evidence interpreted in the light most favorable to the
trial court’s order demonstrates that respondent Perez did not
consent to the material terms of the DRA because O’Gara never
provided them to him. Taking all inferences in favor of the trial
court’s ruling, the court credited Perez’s evidence that O’Gara
provided only the signature page and represented that the
purpose of the DRA was simply to update Perez’s personnel file.
O’Gara’s reliance on (1) the fact that Perez signed the one page
provided to him, and (2) the presumption that a party who signs
a contract has read it is misplaced because the evidence indicates
Perez did not know, or have a reasonable opportunity to know the
material terms of the DRA. Although on appeal, O’Gara argues
that the trial court should have compelled arbitration based on a
different agreement, O’Gara did not raise that agreement in its
petition to compel and does not show the trial court erred in not
relying on an agreement the specific performance of which
O’Gara never sought to compel.

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 FACTUAL AND PROCEDURAL BACKGROUND

1. Complaint
On October 18, 2021, Victor Angelo Perez filed a class
action complaint against O’Gara on behalf of himself and all
persons similarly situated. Perez’s causes of action included
allegations of O’Gara’s failure to pay wages and overtime, failure
to provide meal and rest breaks, failure to reimburse business
expenses, failure to maintain accurate wage statements, violation
of Business and Professions Code section 17200 et seq., and
violation of Labor Code section 2699 et seq. Perez demanded a
jury trial. Perez sought to represent “ ‘all current and former
employees that have been paid on an hourly basis by’ ” O’Gara
during a four-year time period. Perez alleged he worked for
O’Gara from approximately November 2016 to June 16, 2021.
Perez also alleged that O’Gara sold exotic and luxury vehicles.

2. Petition to compel arbitration
O’Gara petitioned to compel arbitration. According to
O’Gara: “On December 26, 2019, Perez executed a Dispute
Resolution Agreement with O’Gara which contains an express
Arbitration Provision that requires binding arbitration of ‘all
disputes that might arise out of or be related in any way to
[Perez’s] employment by [O’Gara .] . . .’ ” O’Gara further argued
that in the DRA O’Gara agreed that he would bring claims only
in his individual capacity and “ ‘agree[d] to waive any substantive
or procedural rights . . . to bring or participate in an action
brought on a class or collective basis.’ ” O’Gara stated: “By way
of this Petition, O’Gara moves to compel arbitration of this
dispute with Perez pursuant to the written arbitration provision
of the Dispute Resolution Agreement.” O’Gara represented that:

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“Perez was given an opportunity to review the Dispute Resolution
Agreement, including the arbitration provision, prior to executing
it.”
In her declaration, Jannine Tejeda, O’Gara’s human
resources director, stated that on December 26, 2019, Perez
“executed Defendant’s Dispute Resolution Agreement via wet ink
signature.” Tejeda also asserted: “Defendant’s Human
Resources representatives were available and willing to explain
any employment paperwork to Plaintiff when he executed the
Dispute Resolution Agreement. To my knowledge, Plaintiff never
voiced any concern about this agreement.” Tejeda did not aver
that she or any O’Gara representative communicated such
availability to Perez.
Tejeda attached a copy of the DRA to her declaration. The
DRA consists of three pages. The first two contain the terms of
the DRA and the final page contains a signature line. The
following text is on page three above the signature line: “My
signature below confirms the fact that I have read, understand,
and voluntarily agree to be legally bound to all of the above
terms. I further understand that this agreement requires the
company and me to arbitrate any and all disputes that arise out
of my employment, and that I and the company are giving up our
rights to a trial by jury. [¶] Do not sign until you have read the
above acknowledgment and agreement.” (Boldface & some
capitalization omitted.) Perez signed the DRA on December 26,
2019. O’Gara did not sign the DRA. The following text appears
after the signature line: “Give a copy to employee and retain
original in personnel file.” (Capitalization omitted.) The page
also contains the number three at the bottom.

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 The first provision on page one of the DRA provides: “I and
O’Gara Coach Company, LLC (‘the Company’) agree to utilize
binding individual arbitration to resolve all disputes that might
arise out of or be related in any way to my employment by the
Company. Such disputes include, but are not limited to, claims I
might bring against the Company for wrongful termination,
discrimination, harassment, retaliation, breach of contract, wage
and hour violations, and torts such as invasion of privacy, assault
and battery, or defamation. Such disputes also include claims
that the Company might bring against me such as, for example,
theft of money or trade secrets, breach of a confidentiality
agreement, or breach of a contract. I and the Company each
specifically waive our respective rights to bring such claims
against the other in a court of law and to have a trial by jury.”
The second provision provides in part: “The only exceptions
to binding arbitration shall be for claims arising under the
National Labor Relations Act which are brought before the
National Labor Relations Board, claims for medical and disability
benefits under the California Workers’ Compensation Act, claims
for benefits brought before the Employment Development
Department, claims for wages brought before the California
Labor Commissioner, or other claims that are not subject to
arbitration under [the] law.” Provision 11, the last provision on
page two provides: “I confirm that I have had time to read this
agreement and ask the Company’s representative any questions I
had about the agreement prior to signing this agreement.”

3. Plaintiffs oppose the petition to compel arbitration
According to Perez’s opposition to the petition to compel:
“The 2019 Agreement [the DRA] was provided in or about
December 2019, during Plaintiff’s employment with Defendant

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[Citation.] Defendant’s Controller, Bertha Aguiano walked to
Plaintiff’s desk during work hours and handed him a one-page
document to sign. [Citation.] When Plaintiff asked what the
document was for, Bertha stated that the signature was required
to ‘update’ his personnel file. [Citation.] Bertha stood at
Plaintiff’s desk until he signed the document. [Citation.]
Plaintiff never saw or received a copy of the first two pages of the
2019 Agreement [the DRA], until after the lawsuit was filed.”
Perez argued that he did not agree to arbitrate the disputes
and the DRA was unconscionable. Perez also referenced a 2016
applicant statement agreement (ASA) not relied upon by O’Gara
in its petition to compel arbitration.1 Perez argued (1) that the
2016 agreement “is controlling” over the DRA; (2) he did not
agree to arbitrate when he signed the 2016 agreement; and
(3) the terms of the 2016 agreement were procedurally and
substantively unconscionable. Perez also argued that his causes
of action for collection of unpaid wages may be pursued
regardless of any agreement to arbitrate.

1 In the words of OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111,
128, the text of the 2016 ASA was “ ‘visually impenetrable’ and
‘challenge[s] the limits of legibility.’ ” The parties do not identify
the size of the font, but based on our review of the text, it is
extremely small. As in Kho, “A layperson trying to navigate this
block text, printed in tiny font, would not have an easy journey.”
(Ibid.) Respondent does not quote the entire alternative dispute
resolution provision in the ASA. We need not “try[ ] to navigate
this block text printed in tiny font” because it is irrelevant to the
appeal as explained in part C.4. of the Discussion.

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4. O’Gara’s reply
O’Gara acknowledged that its petition “did not mention the
2016 Agreement.” Among other things, O’Gara argued plaintiff’s
testimony that he was provided only the last page of the
agreement was “dubious at best” and lacked credibility.

5. Trial court’s March 3, 2022 minute order
The court’s March 3, 2022 minute order provides: “The
Court after reviewing and considering all moving party and
opposing party papers, and arguments of counsel, makes the
following ruling: [¶] The Motion to Compel Arbitration is
DENIED, for the reasons stated on the record. [¶] Plaintiff to
amend the complaint to add PAGA claims by March 17, 2022.
Deadline for defendant to file an answer is April 7, 2022.” On
March 4, 2022, Perez filed a first amended class action complaint.
O’Gara did not request a statement of decision and the
trial court did not provide a statement of decision. On March 29,
2022, O’Gara filed a notice of appeal from the March 3, 2022
order. O’Gara chose to proceed by way of an appendix and
without a record of the oral proceedings in the superior court.

DISCUSSION

A. Standards of Review
The trial court must issue a statement of decision for a
ruling denying a petition to compel arbitration if a party requests
one. (Acquire II, Ltd. v. Cotton Real Estate Group (2013)
213 Cal.App.4th 959, 970.) “A party’s failure to request a
statement of decision when one is available has two
consequences. First, the party waives any objection to the trial
court’s failure to make all findings necessary to support its

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decision. Second, the appellate court applies the doctrine of
implied findings and presumes the trial court made all necessary
findings supported by substantial evidence. [Citations.] This
doctrine ‘is a natural and logical corollary to three fundamental
principles of appellate review: (1) a judgment is presumed
correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of
providing an adequate record affirmatively proving error.’
[Citation.]” (Ibid.; see also Denham v. Superior Court (1970)
2 Cal.3d 557, 564 [“ ‘All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.’ ”].)
“ ‘ “There is no uniform standard of review for evaluating
an order denying a motion to compel arbitration.” ’ [Citation.]”
(Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062,
1066 (Fabian).) The standard of review varies depending on the
basis for the trial court’s denial of the petition. (Gamboa v.
Northeast Community Clinic (2021) 72 Cal.App.5th 158, 166
(Gamboa).) Generally, we review an order denying a petition to
compel arbitration for abuse of discretion except when the
petition presents a pure question of law. (Ibid.) When the trial
court’s ruling turns on questions of fact, the substantial evidence
standard applies, including deferring to the trial court’s
credibility findings. (Ibid.)
“[T]he party seeking arbitration bears the burden of
proving the existence of an arbitration agreement.” (Fleming v.
Oliphant Financial, LLC 88 Cal.App.5th 13, 18 (Fleming).) This
is significant to our standard of review here because “based on
the court’s finding that petitioner failed to carry its burden of
proof, the question for the reviewing court is whether that finding

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is erroneous as a matter of law.” (Fabian, supra, 42 Cal.App.5th
at p. 1066; see Gamboa, supra, 72 Cal.App.5th at p. 166.) Put
another way, in order to prevail on appeal, O’Gara must show as
a matter of law, that the evidence compelled a finding that Perez
agreed to arbitrate his dispute with O’Gara. (Gamboa, at p. 166.)
This is a difficult task given that we must resolve all factual and
credibility findings in favor of respondent. (Id. at p. 167.)
Additionally, we presume the trial court found O’Gara’s evidence
“ ‘ “lack[ed] sufficient weight and credibility to carry the burden
of proof. [Citations.] . . . .” ’ [Citation.]” (Fabian, at p. 1067.)

B. Legal Background
“In evaluating whether a disputed matter requires
arbitration, the focus is preliminarily placed on any agreement by
parties to do so. ‘ “Under ‘both federal and state law, the
threshold question presented by a petition to compel arbitration
is whether there is an agreement to arbitrate.’ ” ’ [Citations.]
The threshold question requires a response because if such an
agreement exists, then the court is statutorily required to order
the matter to arbitration. Code of Civil Procedure section 1281.2
provides, in relevant part: ‘On petition of a party to an
arbitration agreement alleging the existence of a written
agreement to arbitrate a controversy and that a party to the
agreement refuses to arbitrate that controversy, the court shall
order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the
controversy exists.’ [Citation.] This initial issue also reflects the
very plain principle that you cannot compel individuals or
entities to arbitrate a dispute when they did not agree to do so.
‘ “[T]here is no policy compelling persons to accept arbitration of
controversies that they have not agreed to arbitrate.” ’

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[Citation.]” (Fleming, supra, 88 Cal.App.5th at p. 19; see also
Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal.4th 223, 236, [“it is a cardinal principle
that arbitration . . . ‘is a matter of consent, not coercion’ ”];
Costa v. Road Runner Sports, Inc. (2022) 84 Cal.App.5th 224, 233
[“While both the Federal Arbitration Act [citation] and California
law favor arbitration, a party is not required to arbitrate his or
her claims absent consent.”].)
“Contract formation requires mutual consent, which cannot
exist unless the parties ‘agree upon the same thing in the same
sense.’ [Citations.] ‘If there is no evidence establishing a
manifestation of assent to the “same thing” by both parties, then
there is no mutual consent to contract and no contract formation.’
[Citations.] ‘Mutual assent is determined under an objective
standard applied to the outward manifestations or expressions of
the parties, i.e., the reasonable meaning of their words and acts,
and not their unexpressed intentions or understandings.’
[Citations.]” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th
199, 208.)

C. O’Gara As the Party Seeking Arbitration Failed to
Establish the Existence of an Arbitration Agreement

1. O’Gara does not show as a matter of law that
Perez agreed to the DRA
In Fleming, the appellate court questioned how a party
could have consented to an arbitration agreement “that he was
not provided.” (Supra, 88 Cal.App.5th at p. 21.) The defendant,
who sought to enforce an arbitration agreement, did not provide a
signed arbitration agreement, but instead provided exemplars of
“Cardmember Agreement” that included an arbitration provision.

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(Id. at p. 17.) The plaintiff denied receiving any exemplar
and “denied ever agreeing to settle any disputes through
arbitration . . . .” (Id. at p. 18.) The appellate court explained
that the threshold issue is whether an agreement to arbitrate
exists. (Id. at pp. 18–20.) The court concluded no agreement to
arbitrate existed because the defendant failed to make a showing
that it had provided the alleged arbitration agreement to the
plaintiff. (Id. at pp. 23, 25; see also Chambers v. Crown Asset
Management, LLC (2021) 71 Cal.App.5th 583, 602 [holding the
defendant could not show consent to arbitrate where the evidence
did not show defendant provided plaintiff the arbitration
agreement].)
Here, interpreting the facts in accord with our standard of
review, as in Fleming, there was evidence that Perez did not
consent to arbitrate disputes because O’Gara never provided the
substantive terms of the DRA to Perez. Specifically, pages one
and two of the DRA contain the material terms, and according
to Perez, O’Gara never provided him with those pages.
Additionally, when Perez inquired, O’Gara’s representative
did not disclose that the DRA constituted an arbitration
agreement, but instead represented that its purpose was to
update Perez’s personnel file. Although the last page of the DRA
requires O’Gara’s representative to “give a copy to employee,”
O’Gara did not provide it to Perez. Thus, the evidence supports
the conclusion that O’Gara did not provide the terms of the DRA
to Perez, a conclusion that is fatal to finding he consented to
arbitrate his claims.2

2 We recognize that, in contrast to Fleming, O’Gara
received and signed the signature page and consider the
consequence of that fact in the next section.

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 O’Gara’s contrary argument relies on evidence and
inferences inconsistent with our standard of review.3 Specifically
O’Gara emphasizes (1) Perez should have recognized that the
signature page provided to him was not the only page of the DRA,
and did not request additional pages; (2) O’Gara did not deny him
the opportunity to receive the complete DRA; and (3) Perez never
objected to signing the DRA. By emphasizing the evidence in the
light most favorable to it, O’Gara ignores the appropriate
standard of review and does not show that the trial court erred.
(Gamboa, supra, 72 Cal.App.5th at pp. 166, 170.)

2. The fact that Perez signed page three does not,
as a matter of law, demonstrate mutual assent
In Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th
696 (Metters), a case cited by O’Gara, the appellate court
explained: “ ‘[O]rdinarily one who signs an instrument which on
its face is a contract is deemed to assent to all its terms. A party
cannot avoid the terms of a contract on the ground that he or she
failed to read it before signing. [Citations.]’ [Citation.] This is so
even where the contracting party relied on misrepresentations by
the other party that it was not necessary to read the contract
before signing. ‘[O]ne party’s unreasonable reliance on the
other’s misrepresentations, resulting in a failure to read a
written agreement before signing it, is an insufficient basis,
under the doctrine of fraud in the execution, for permitting that
party to avoid an arbitration agreement contained in the
contract.’ [Citation.]” (Id. at pp. 701–702, italics omitted.)

3 O’Gara incorrectly states that this court’s standard of
review is de novo.

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 In addition to stating the general rule, Metters identifies an
exception relevant here: “But if the one who signs the
instrument is unaware of the contractual provisions, he cannot be
said to have agreed to them. Thus, ‘[a]n exception to [the]
general rule exists when the writing does not appear to be a
contract and the terms are not called to the attention of the
recipient. In such a case, no contract is formed with respect to
the undisclosed term. [Citations.]’ [Citation.]” (Metters, supra,
161 Cal.App.4th at p. 702.)
Here, according to Perez, he was unaware of the
contractual provisions in the DRA because O’Gara did not
provide them to him. As noted in the previous section, O’Gara
did not give Perez the substantive terms of the DRA and
represented that the one-page document he did receive and sign
served merely to update his personnel file. The one page
provided to Perez does not reference O’Gara by name and was not
countersigned by any O’Gara representative, which further
undermines O’Gara’s claim that Perez necessarily assented to an
arbitration agreement with O’Gara. The foregoing evidence
supports the trial court’s implicit finding that even though Perez
signed a one-page document, he had not received the material
terms of the DRA, and therefore could not have consented to
them. (Windsor Mills, Inc. v. Collins & Aikman Corp. (1972)
25 Cal.App.3d 987, 993 [“[A]n offeree, regardless of apparent
manifestation of his consent, is not bound by inconspicuous
contractual provisions of which he was unaware, contained in a
document whose contractual nature is not obvious.].)

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 3. O’Gara’s reliance on the general presumption
that one who signs a contract has read it is
misplaced
O’Gara argues that Perez signed the DRA and “[t]here is a
presumption that one who signs a contract has read it.” O’Gara
cites Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667,
which explains that “ ‘[r]easonable diligence requires the reading
of a contract before signing it. A party cannot use his own lack of
diligence to avoid an arbitration agreement. [Citation.]’
[Citation.]” (Id. at p. 1674.) O’Gara also cites Rosenthal v. Great
Western Fin. Securities Corp. (1996) 14 Cal.4th 394 for the
proposition that “it is generally unreasonable . . . to neglect to
read a written agreement before signing it” even if an individual
is told that it is not necessary to read.4 (Rosenthal, at p. 424.) In

4 O’Gara cites other authority involving circumstances in
which the party seeking to avoid a contract had the opportunity
to read it but failed to do so. In Stewart v. Preston Pipeline Inc.
(2005) 134 Cal.App.4th 1565, 1587, the court held that, for
purposes of summary judgment, the plaintiff’s statement that he
had not read the agreement but signed it only because his
attorney told him to do so did not raise a triable issue with
respect to mutual assent. Hernandez v. Badger Construction
Equipment Co. (1994) 28 Cal.App.4th 1791 also cites the general
rule that “ ‘one who assents to a contract cannot avoid its terms
on the ground he failed to read it before signing it. [Citations.]’
[Citation.]” (Id. at p. 1816.) Constantian v. Mercedes-Benz Co.
(1936) 5 Cal.2d 631, 634 holds that there is a presumption that a
party who signs a contract read the contract. In that case, the
court explained that the party seeking to avoid the contract had “
‘ample’ ” opportunity to review it and there was “ ‘no evidence’ ”
to contradict the presumption that they had read the contract.
(Ibid.) O’Gara does not explain how these cases apply to the

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contrast to the person who lacks diligence and assents to a
contract without reading it, a person may sign a contract without
assenting to its terms where “ ‘a misrepresentation as to the
character or essential terms of a proposed contract induces
conduct that appears to be a manifestation of assent by one who
neither knows nor has a reasonable opportunity to know of the
character or essential terms of the proposed contract, his conduct
is not effective as a manifestation of assent.’ [Citations.]” (Duick
v. Toyota Motor Sales, U.S.A., Inc. (2011) 198 Cal.App.4th 1316,
1321 (Duick).)
Interpreting the evidence in the light most favorable to the
trial court’s order, the evidence does not show, as a matter of law,
that Perez lacked reasonable diligence or was negligent in failing
to read the entire DRA before signing it. Again, there was
evidence that Perez neither knew, nor had an opportunity to
review the essential terms of the DRA, that O’Gara
misrepresented the purpose of the one-page document Perez
signed, which was not signed by O’Gara and did not even
reference O’Gara. There was also evidence that O’Gara’s
representative stood by Perez’s desk until he signed it, providing
him no time to consider the DRA or consult with O’Gara’s human
resources personnel and request additional explanation. O’Gara
violated the DRA’s own terms by failing to provide him with a
copy after he signed it and thereby depriving him of the
opportunity to review the entire agreement even after he signed
it. It is immaterial whether O’Gara’s misrepresentation “was
intentional, negligent, or even innocent” (Duick, supra,

situation where the party who drafted the agreement and seeks
to enforce it failed to provide its terms to the other party.

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198 Cal.App.4th at p. 1323, fn. 4), because regardless of whether
O’Gara was at fault, the evidence supports the trial court’s
implicit conclusion that Perez was not negligent in failing to read
the entire DRA prior to signing it.
O’Gara cites Ramos v. Westlake Services LLC (2015)
242 Cal.App.4th 674, 676, but that case supports Perez’s position.
In Ramos, a Spanish-speaking employee received only an English
version of a contract and a purported Spanish translation of the
contract. (Id. at p. 687.) The employee relied on the fact that the
employer “provided him with what purported to be a Spanish
translation of the English Contract he was being asked to sign, a
Spanish translation which did not contain the arbitration
agreement.” (Ibid.) The appellate court held “there was no
mutual assent because the arbitration agreement was hidden in
the English Contract” and concluded that there was no
arbitration agreement because of no mutual assent. (Id. at
pp. 687–688.) In Ramos, the employee did not consent to the
term that was not included in the Spanish agreement provided to
him. Although unlike in Ramos, there was no translation issue,
there was evidence that O’Gara provided Perez only part of the
DRA. Accordingly, O’Gara has failed to demonstrate as a matter
of law, that Perez assented to provisions O’Gara never had shown
him.

4. O’Gara shows no error in denying a petition to
compel based on the 2016 ASA which was not
referenced in the petition to compel
On appeal, O’Gara argues that if this court finds the DRA
invalid, the arbitration clause in the 2016 ASA is valid and
requires arbitration of Perez’s claims. O’Gara did not move to
compel arbitration based on the ASA. In its reply brief in the

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trial court, O’Gara stated: “Plaintiff correctly points out that
O’Gara’s Petition did not mention the 2016 Agreement in its
moving papers . . . .”
“A petition to compel arbitration is a suit in equity seeking
specific performance of an arbitration agreement.” (Espejo v.
Southern California Permanente Medical Group (2016)
246 Cal.App.4th 1047, 1057; see also Rice v. Downs (2016)
248 Cal.App.4th 175, 185.) Code of Civil Procedure
section 1281.2 provides in pertinent part: “On petition of a party
to an arbitration agreement alleging the existence of a written
agreement to arbitrate a controversy and that a party to the
agreement refuses to arbitrate that controversy, the court shall
order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the
controversy exists, unless it determines that” certain exceptions
apply. (Code. Civ. Proc., § 1281.2.) Just as section 1281.2
requires the “existence of a written agreement” a cause of action
for specific performance requires (among other things) an
underlying contract. (Real Estate Analytics, LLC v. Vallas (2008)
160 Cal.App.4th 463, 472.)
The only agreement for which O’Gara sought specific
performance was the DRA. On appeal, O’Gara demonstrates no
error in the trial court’s denial of its petition to arbitrate based on
a purported arbitration agreement it claimed below was not at
issue.

D. O’Gara’s Remaining Arguments Depend on the
(Incorrect) Premise that Perez Agreed to the DRA
Because we conclude that there was no mutual assent to
the DRA, there is no arbitration agreement to enforce. (Marin
Storage & Trucking, Inc. v. Benco Contracting & Engineering,

17
Inc. (2001) 89 Cal.App.4th 1042, 1049.) We therefore do not
address O’Gara’s arguments that the DRA (1) satisfied the
standards in Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83; (2) remains valid even though
it was not signed by O’Gara’s president; and (3) was not
unconscionable. All of those arguments presuppose the existence
of an arbitration agreement.
O’Gara also argues that this court “should direct the trial
court to dismiss, with prejudice, his [Perez’s] request for class-
wide relief.” Additionally, O’Gara claims that the PAGA claim
should be dismissed. It appears that those arguments are
premised on the enforceability of the DRA.5 Because we conclude
O’Gara has not demonstrated the parties agreed to the DRA, we
need not further consider O’Gara’s request to dismiss certain
claims based on language contained in the DRA.

5 A provision on page one of the DRA states in pertinent
part: Claims pursued “in arbitration under this agreement shall
be brought” in Perez’s “individual capacity.” “This agreement
shall not be construed to allow or permit the consolidation or
joinder of claims of other claimants, or to permit such claims to
proceed as a class or collective action.” “If under appliable law a
representative claim under the California Private Attorneys
General Act (‘PAGA’) is found to be unwaivable and such an
action is pursued in court, I and the Company agree that any
such PAGA claim will be severed and stayed pending resolution
of claims that are arbitrable.”

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 DISPOSITION
The order denying O’Gara Coach Company, LLC’s petition
to compel arbitration is affirmed. Victor Angelo Perez is awarded
his costs on appeal.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

WEINGART, J.

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