Mayo v. Discovery Health Services CA4/1

Filed 12/29/23 Mayo v. Discovery Health Services CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JORDEN MAYO, D081113

Plaintiff and Respondent,

v. (Super. Ct. No.
37-2021-00044001-CU-WT-CTL)
DISCOVERY HEALTH SERVICES, INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Keri G. Katz, Judge. Affirmed.
Ballard Rosenberg Golper & Savitt, David Jonathan Fishman, John
Joseph Manier and Teri A. Gibbs for Defendant and Appellant.
Hillier DiGiacco, Andrew E. Hillier and Francis Anthony DiGiacco for
Plaintiff and Respondent.
Plaintiff and respondent Jorden Mayo sued her previous employer,
defendant and appellant Discovery Health Services, Inc. (Discovery Health),
alleging, inter alia, discrimination based on gender identity and various

Labor Code violations.1
Discovery Health petitioned to compel arbitration, which Mayo
opposed. The court denied the petition. Discovery Health contends the court
erred, as sufficient evidence showed Mayo agreed to arbitrate her claims.
Mayo seeks monetary sanctions against Discovery Health for filing a
frivolous appeal. We affirm the court’s order, but deny the sanctions motion.
FACTUAL AND PROCEDURAL BACKGROUND
Mayo alleged in her complaint that Discovery Health, which provides
on-site wellness services to government agencies, schools, and employers,
discriminated against her on grounds of gender identity and gender
expression in violation of the Fair Employment and Housing Act (Gov. Code,
§ 12940, subd. (a)) and wrongfully terminated her in violation of public policy.
She also alleged it violated labor laws regarding: overtime (Lab. Code, §§ 501,
1198); minimum wage payments (Lab. Code, §§ 1194, 1197, 1197.1); meal
periods (Lab. Code, §§ 226.7, 512, subd. (a)); itemized wage statements (Lab.
Code, § 226, subd. (a)); and payments for wages owed at time of separation
(Lab. Code, §§ 201-203). She set out causes of action for unfair competition
(Bus. & Prof. Code, § 17200 et seq.) and violation of the Private Attorneys
General Act (PAGA) (Lab. Code, § 2698 et seq.).

1 Mayo states in her complaint and opening brief that she “is a
transgender individual, who identifies and expresses as female even though
she was assigned the male gender at birth.” She alleged that while employed
at Discovery Health, she “was in the process of physically transitioning from
male to female.” We refer to Mayo using feminine pronouns throughout this
opinion.
2
Discovery Health’s Petition to Compel Arbitration
Discovery Health petitioned to compel arbitration. It relied extensively
on a declaration by its vice president of clinical operations, Jorge Gonzalez,
and attached exhibits so as to show that the parties entered into an

arbitration agreement.2 Gonzalez reviewed records of Mayo’s July 27, 2020
to August 17, 2020 employment with Discovery Health. He explained that
after Discovery Health accepts a new hire, the applicant, to complete the full
employment application, must electronically acknowledge acceptance of
documents and agreements online through a third-party website, Contingent
Health Management (CHM), which Discovery Health hired for that purpose.
Gonzalez stated that CHM houses “Discovery [Health] employee documents
and assists with recruiting, hiring, onboarding and various other personnel
practices. CHM maintains a cloud-based password-protected online portal
[that] provides Discovery [Health] applicants with access to certain
employment policies, documents, forms, and agreements and also gives them
the ability to sign these documents electronically. [¶] The CHM system
contains several built-in safeguards to prevent tampering and to ensure an
applicant’s privacy.” (Some capitalization omitted.)
Gonzalez stated that upon creating a unique, private password online,
and clicking “submit,” an applicant is routed to a “candidate dashboard” that
displays links to Discovery Health’s employment application form, a skills
checklist, and digitized employee documents, forms, and agreements. (Some
capitalization omitted.) One such document, the “2019 employee handbook
sign pages,” includes a “Statement of Employee” and an arbitration
agreement. (Some capitalization omitted.)

2 Discovery Health also submitted a declaration by its counsel, who
provided a foundation for various exhibits.
3
 Gonzalez explained that the “Statement of Employee” provides: “I have
received and read a copy of the 2019 employee handbook, and I acknowledge
the following[:] . . . I understand that this handbook represents the current
policies, regulations[.] . . . My signature below certifies that I understand
the foregoing agreement and that it is the sole and entire agreement between
Discovery [Health] and me.” (Some capitalization omitted.) At the end of the
statement, there are three printed lines for the date, an applicant’s electronic
signature, and printed or typed name. The date and printed or typed name
are prepopulated for them. The statement of employee warns an applicant in
all capital letters, “DO NOT SIGN UNTIL YOU HAVE READ THE ABOVE
ACKNOWLEDGEMENT AND AGREEMENT.”
According to Gonzalez, clicking “next” on the top of the webpage above
the embedded “Statement of Employee” will navigate an applicant to a two-
page, embedded arbitration agreement, which is the same one that appears

in the employee handbook.3 The CHM system will not automatically input

3 Gonzalez quotes the arbitration agreement in his declaration: “To the
fullest extent allowed by law, any controversy, claim or dispute between
employee and employer relating to or arising out of employee’s employment
or the cessation of that employment will be submitted to final and binding
arbitration for determination in accordance with the JAMS employment
arbitration rules [and] procedures, including any subsequent modifications or
amendments to such rules, as the exclusive remedy for such controversy,
claim or dispute. [¶] . . . Claims shall be brought in the parties’ individual
capacity, and not as a plaintiff or class member in any purported class or
representative proceeding. The arbitrator may not consolidate more than one
party’s claims, and may not otherwise preside over any form of a
representative or class proceeding[.] . . . Possible disputes covered by the
above include (but are not limited to) unpaid wages, breach of contract, torts,
violation of public policy, discrimination, harassment, retaliation, or any
other employment-related claims under laws including but not limited to,
Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act,
4
anyone’s electronic signature/record acknowledgement of the “Statement of
Employee,” or any other agreement, without an applicant completing the
process to submit the agreement.
Gonzalez states: “The employee handbook includes two references to
[Discovery Health’s] arbitration agreement and related policies . . . one on
page 9 where it lists Discovery Health’s mutual/bilateral arbitration of

disputes policy4 and another on pages 65-66 where it includes a copy of the
arbitration agreement.” (Some capitalization omitted.) Clicking “next” on
the top of the webpage above the embedded “Statement of Employee” will
navigate an applicant to the two-page, embedded arbitration agreement,
which is identical to the one included in the employee handbook.

the Age Discrimination in Employment Act, the California FairEmployment
and Housing Act, the California Labor Code, and any other statutes or laws
relating to an employee’s relationship with his/her employer, regardless of
whether such dispute is initiated by employee or employer. [¶] . . . BY
AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH
EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY
JURY. This arbitration agreement is to be construed as broadly as is
permissible under applicable law. The enforceability of this agreement shall
be governed by the Federal Arbitration Act.” (Some capitalization omitted.)

4 Discovery Health in its moving papers quotes the mutual/bilateral
arbitration of disputes policy: “Alternative dispute resolution is an effective
and efficient method of resolving differences between the company and
employees out of court in the hope of avoiding the prolonged and often
expensive process of traditional litigation. [¶] The company promotes a
system of alternative dispute resolution that involves mutual, bilateral,
binding arbitration, to resolve all disputes that may relate to or arise out of
the employment relationship or the cessation of employment. Binding
arbitration can provide mutual benefits to both the employee and the
company including reduced expense, increased efficiency, and increased
privacy. The arbitration procedure is more fully described in the
‘comprehensive agreement, employment at-will and mutual/bilateral
arbitration.’ ” (Some emphasis and capitalization omitted.)

5
 According to Gonzalez, Mayo followed the same procedure described
above. Gonzalez submitted documents showing that on July 26, 2020, Mayo
visited Discovery Health’s website and created her unique, private password.
That same day, “she executed the arbitration agreement using the CHM
system.” She also “electronically signed/acknowledged the ‘2019 employee
handbook sign pages,’ which includes the arbitration agreement and
statement of employee.” (Some capitalization omitted.) Gonzalez concludes
Mayo would have been unable to submit the full employment application and
begin employment without signing all of the documents assigned to her by
logging onto the system using her personal e-mail address and unique,

private password.5

5 Gonzalez in his declaration explains: “There are three ways for an
applicant to electronically sign/make a record of acknowledgment and
signature of the ‘2019 employee handbook sign pages” once these agreements
are assigned to them on the CHM system.” (Some capitalization omitted.)
He describes the ways as follows:
“A. Checking a box that reads ‘sign’ on the signature line of the ‘2019
employee handbook sign pages’: Upon checking a box that reads ‘sign’ on
‘2019 employee handbook sign pages’, a dialogue box appears that requires
an applicant to enter their username and unique, private password again.
The dialogue box includes a warning in bold, red writing that reads: ‘Your
document is not complete until you sign and click the “submit form” button.’
. . . An applicant must then press a button titled ‘submit form’ on the top of
the webpage above each embedded agreement to complete the signing of the
agreements and to effectually sign/acknowledge them. Upon clicking ‘submit
form,’ an applicant’s home page will indicate that the ‘2019 employee
handbook sign pages’ are complete and electronically signed/acknowledged,
and the home page will reflect this;
“B. Clicking ‘submit form’: An applicant can forego checking the ‘sign’
box and press ‘submit form’ on the top of the webpage above the embedded
agreements. As in option (A), the ‘2019 employee handbook sign pages’ will
be effectually signed/acknowledged upon clicking the ‘submit form,’ and the
home page will reflect this; or
6
 Gonzalez concludes: “Even if the signature line remains blank on an
agreement, that agreement is deemed ‘signed/acknowledged’ because of the
extensive process set up by the CHM system wherein an applicant must first
log onto the CHM system using their own unique, private password, then
either (1) check the ‘sign’ box to enter their username and password; (2) click
the ‘next’ button to click through the documents prior to clicking ‘submit
form’; or (3) click the ‘submit form’ button.” (Some capitalization omitted.)
Gonzalez continues: “When [Mayo] checked ‘submit form’ after inputting her
username and unique password to log onto the CHM system, she agreed that
she was electronically signing the statement of employee and arbitration
agreement.” (Some capitalization omitted.) Discovery Health added: “In
signing the Statement of Employee, [Mayo] acknowledged receipt,
understanding and accepting of the policies and regulations within the

“C. Clicking through all pages of the agreement, then clicking ‘submit
form’: An applicant can click through the pages of the agreement by using
the ‘next’ button on the top of the webpage above the embedded agreements.
Clicking ‘next’ will automatically add a check mark to the ‘sign’ boxes on the
agreements. An applicant must then click ‘submit form’ on the top of the
page above the embedded agreements. As in options (A) and (B), the ‘2019
employee handbook sign pages’ will then be effectually signed/acknowledged
and the home page will reflect this.” (Some capitalization omitted.)
Gonzalez adds: “Clicking ‘submit form’ on the top of the webpage above
the embedded ‘2019 employee handbook sign pages’ is the final step in
collectively signing/making a record of acknowledging and signing the
statement of employee and arbitration agreement, regardless of which of the
three methods outlined . . . the user chose to employ to electronically sign the
agreements.” (Some capitalization omitted.)
Based on Gonzalez’s declaration, Discovery Health argued, “An
applicant cannot successfully submit the application without
signing/accepting the ‘2019 employee handbook sign pages’ in the application
or all of the agreements, and other documents and forms, assigned to them.”
(Some capitalization omitted.)

7
employee handbook. . . . The arbitration agreement is listed in the table of
contents of the employee handbook and is expressly incorporated therein[.]”
Discovery Health alternatively moved the court to stay the proceedings
pending the United States Supreme Court’s decision in Viking River Cruises,
Inc. v. Moriana (2022) 596 U.S. 639 (Viking River). It reasoned, “If this court
will not dismiss [Mayo’s] PAGA claims by way of this motion, the decision in
Viking River should inform the court that [she] effectively waived her right to
bring PAGA claims when she signed the arbitration agreement with
Discovery [Health] and that her PAGA claims must be dismissed from this

action.”6 (Some capitalization omitted.)
Mayo’s Opposition
In opposing the petition, Mayo submitted a declaration stating: “I
accessed [Discovery Health’s] online portal. When I did, I had access to [its]
employee handbook. I do not recall reviewing anything in [it] that referred to
an arbitration agreement nor do I recall being informed that I should review
the employee handbook for information about an arbitration agreement.”
(Some capitalization omitted.) Mayo explained her understanding behind her
signing the Statement of Employee electronically: “I believed that I was
acknowledging receipt of the employee handbook I accessed prior to signing.”
She added, “I did not receive any notification through [Discovery Health’s]
online portal that I had not filled out and/or signed any documents that I was

6 Mayo argued that Viking River, supra, 596 U.S. 639 had no bearing on
this case because here no valid arbitration agreement exists between the
parties. The court did not address the request to stay the motion beyond
pointing out that Viking River was already decided. On appeal, Discovery
Health requests that we reverse the court’s order and remand with directions
that under Viking River, Mayo’s individual claims be arbitrated and the case
stayed pending arbitration. But as set forth below, we have no basis to
reverse the order.

8
required to fill out or sign before submitting. [¶] When I started my job on
July 27, 2020, no one at Discovery [Health] told me that I had not filled out
and/or signed any documents that I was required to fill out or sign nor did
anyone provide me with any documents to fill out or sign as part of my
onboarding.”
Mayo contended she did not electronically sign the arbitration
agreement; rather, she signed only the Statement of Employee: “The lack of
a signature is striking given that the CHM system . . . clearly applies an
electronic signature to documents that [Mayo] actually signed,” like the
Statement of Employee, which includes a statement that says, “electronically
signed by [Mayo].” (Some capitalization omitted.) She points out that by
contrast, “if [she] had electronically signed the arbitration agreement, it
would bear the same electronic signature . . . . The fact it does not confirms
that [she] did not sign [it].” (Some capitalization omitted.)
Mayo contended: “The signed Statement of Employee does not bind
[me] to arbitrate [my] claims; it does not so much as mention arbitration.”
She pointed out that the handbook by its express language was “not a
contract.” She concluded that her “signature on the statement of employee
cannot act as a signature on the arbitration agreement given that
agreement’s own signature lines.” (Some capitalization omitted.) Mayo
objected to several statements in the declarations of Gonzalez and Discovery
Health’s attorney.

Discovery Health’s Reply
Discovery Health in reply argued: “[Mayo] could not have signed the
‘employment handbook sign pages’ without pressing submit after reviewing
the statement of employee and arbitration agreement. . . . Pressing submit

9
was a manner in which [Mayo] could sign the agreements. . . . Once the
agreements were submitted, the CHM system (a) indicated so by inputting a
green check mark next to the words ‘employment handbook sign pages’ on the
CHM system home page and (b) produced metadata showing that that the
agreements were signed. . . . No one else could have submitted the
agreements, but [Mayo]. . . . [Her] conduct plainly establishes her mutual
assent to be bound by the agreements.” (Some capitalization omitted.)
Discovery Health also objected to several statements in Mayo’s declaration.
The Court’s Ruling
At a proceeding on the court’s tentative ruling denying the petition, the
court asked Discovery Health’s counsel if he agreed that Mayo’s signature
did not appear on the arbitration agreement. Counsel conceded, “on the line
that says ‘signature,’ we don’t dispute that the line is blank.”
Following argument from counsel, the court confirmed its tentative
ruling. It overruled the parties’ evidentiary objections. It ruled that
although Discovery Health met its initial burden of producing prima facie
evidence of a written agreement to arbitrate the controversy, Mayo also met
her burden of challenging the authenticity of the arbitration agreement.
Therefore, the burden shifted back to Discovery Health to establish with
admissible evidence a valid arbitration agreement existed between the
parties. The court found Discovery Health’s evidence, including Gonzalez’s
declaration and the exhibits submitted, did not satisfy its burden: “It is
undisputed that [Mayo] did not click the ‘sign’ box. Without any further
evidence, the court is not persuaded by Discovery Health’s argument that
clicking on a ‘next’ button or a ‘submit form’ button constitutes signing the
arbitration agreement. While the evidence may be sufficient to support a
finding that [Mayo] was required to view the arbitration agreement as part of

10
the onboarding process, there is insufficient evidence to establish that [she]
signed, either electronically or otherwise, the arbitration agreement.” (Some
capitalization omitted.)
The court also concluded that “there is insufficient evidence to establish
that [Mayo’s] signature on the ‘statement of employee’ at the end of the
employee handbook satisfies the separate signature requirement on the
arbitration agreement.” (Some capitalization omitted.) It regarded as
“irrelevant” Gonzalez’s assertion “that the arbitration agreement is ‘deemed’
signed” by Mayo because of the extensive process set up by the CHM system,
pointing out that in California, mutual assent is determined on an objective
basis. Therefore, “the subjective intent of Gonzalez and/or Discovery Health,
and evidence that the CHM system treats the statement of employee and the
arbitration agreement as a singular document, have no bearing on the issue

of whether there was mutual assent.”7 (Some capitalization omitted.)
DISCUSSION
Discovery Health contends it presented sufficient undisputed evidence
establishing “Mayo assented to the arbitration agreement’s terms.”
(Emphasis and capitalization omitted.) It asserts: “Although the employee
signature line on her arbitration agreement is blank, Mayo’s printed name
and signature date . . . both appear. . . . This could have happened only if
someone using Mayo’s personal email address and her unique, private
password logged onto her CHM system account that day, as only Mayo
admittedly did . . .—and only if that logged-in person (Mayo) clicked ‘submit
form’ above the arbitration agreement, which the applicant is explicitly

7 Discovery Health concedes in reply it does not challenge the court’s
relevance finding concerning Gonzalez’s claim that Mayo was “deemed” to
have signed the arbitration agreement.
11
instructed to do when they ‘are ready to send the form’ to Discovery
[Health].”
A. Applicable Law
California statutes create a “summary proceeding” for resolving
petitions or motions to compel arbitration. (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 972.) “The petitioner bears the burden of
proving the existence of a valid arbitration agreement by the preponderance
of the evidence, and a party opposing the petition bears the burden of proving
by a preponderance of the evidence any fact necessary to its defense.
[Citation.] In these summary proceedings, the trial court sits as a trier of
fact, weighing all the affidavits, declarations, and other documentary
evidence, as well as oral testimony received at the court’s discretion, to reach
a final determination.” (Ibid.)
“To carry [its] burden of persuasion the moving party must first
produce ‘prima facie evidence of a written agreement to arbitrate the
controversy.’ [Citations.] ‘If the moving party meets its initial prima facie
burden and the opposing party disputes the agreement, then . . . the opposing
party bears the burden of producing evidence to challenge the authenticity of
the agreement.’ [Citations.] If the opposing party produces such evidence,
then ‘the moving party must establish with admissible evidence a valid
arbitration agreement between the parties.’ [Citations.] Despite the shifting
burden of production, ‘[t]he burden of proving the agreement by a
preponderance of the evidence remains with the moving party.’ ” (Trinity v.
Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1120.)
The California Supreme Court “has clearly stated that a court, before
granting a petition to compel arbitration, must determine the factual issue of
‘the existence or validity of the arbitration agreement.’ [Citation.] In this

12
way, a court’s role, though limited, is critical. ‘There is indeed a strong policy
in favor of enforcing agreements to arbitrate, but there is no policy
compelling persons to accept arbitration of controversies which they have not
agreed to arbitrate and which no statute has made arbitrable.’ ” (Toal v.
Tardif (2009) 178 Cal.App.4th 1208, 1219-1220.) “ ‘An “arbitration
agreement is subject to the same rules of construction as any other
contract . . . .” ’ [Citation.] For any contract, the parties’ consent is a basic
element. [Citation.] In addition, the parties’ consent must be communicated
to one another. [Citation.] Thus, a party’s consent is essential to ‘the
contractual underpinning of the arbitration procedure . . . .’ [Citation.] ‘[T]he
asserted absence of contractual consent renders arbitration, by its very
definition, inapplicable to resolve the issue.’ ” (Id. at p. 1221.)
“A party’s acceptance of an agreement to arbitrate may be express, as
where a party signs the agreement. A signed agreement is not necessary,
however, and a party’s acceptance may be implied in fact [citation] or be
effectuated by delegated consent [citation]. An arbitration clause within a
contract may be binding on a party even if the party never actually read the
clause.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal.4th 223, 236.)
“ ‘There is no uniform standard of review for evaluating an order
denying a motion to compel arbitration.’ ” (Carlson v. Home Team Pest
Defense, Inc. (2015) 239 Cal.App.4th 619, 630.) “[T]he existence of an
enforceable arbitration agreement is established under state law principles
involving formation, revocation and enforcement of contracts generally.”
(Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348,
357.) Where the facts are undisputed, the reviewing court assesses de novo
whether a valid agreement to arbitrate was formed. (Serafin v. Balco

13
Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 173.) When, as here, the
court’s order denying a motion to compel arbitration is 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 is erroneous as a matter of law.
(Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-979; see
also Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196
Cal.App.4th 456, 465 [where trier of fact concludes that the party with the
burden of proof fails to carry the burden, it is “misleading” to characterize the
standard of review as one of substantial evidence].) “ ‘Specifically, the
question becomes whether the appellant’s evidence was (1) “uncontradicted
and unimpeached” and (2) “of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a
finding.” ’ ” (Juen, at pp. 978-979; see also Almanor Lakeside Villas Owners
Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [same].)
B. Analysis
Discovery Health supported its petition to compel by submitting two
electronic documents (a statement of employee that Mayo signed and an
arbitration agreement that she did not sign). The court concluded the
absence of Mayo’s signature on the arbitration agreement sufficed to show
she did not agree to arbitrate her claims. Discovery Health’s evidence was
not uncontradicted and unimpeached as a matter of law; rather, the court
found it was insufficient to compel a finding of contract formation. (Juen v.
Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th at pp. 978-979.) Specifically,
Gonzalez’s declaration regarding the CHM System and how Discovery
Health’s new employees are processed for employment using that system
allowed the court to infer that if Mayo had agreed to arbitrate her claims, she
would have signed the arbitration agreement electronically, just as she did

14
with the statement of employee. Under the objective standard of ascertaining
mutuality of assent in contract formation (Serafin v. Balco Properties Ltd.,
LLC, supra, 235 Cal.App.4th at p. 173), Mayo’s failure to sign the arbitration
agreement leads to a rational inference she did not agree to it.
It is true, as Discovery Health argues without elaboration, that binding
California authority holds “mutual assent may be demonstrated without a
formal signature.” However, the case Discovery Health relies on for that
proposition, Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, is
unavailing here. That court cited evidence the employer sent the employee a
memorandum informing her of the employer’s new dispute resolution
program, emphasized “IT APPLIES TO YOU,” and explained “[i]t will govern
all future legal disputes between you and the Company.” (Id. at p. 419.)
Unlike the arbitration agreement provision in the Discovery Health
handbook, the memorandum in Craig v. Brown & Root, Inc. established in
and of itself the employer’s dispute resolution program, and did not include
an express requirement that its employees sign an arbitration agreement.
Therefore, Craig v. Brown & Root, Inc. is inapposite.
Discovery Health also relies on case law stating an individual does not
need to read the arbitration agreement to be bound by it. (24 Hour Fitness,
Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1215.) However, in that
case, the employee did sign the agreement, and the court ruled the signature
was binding regardless of whether the employee read the document. By
contrast, Discovery Health concedes Mayo did not sign the arbitration
agreement.
Discovery Health argues that by signing the Statement of Employee,
Mayo agreed to the arbitration agreement. Although it recognizes the
Statement of Employee “does not mention arbitration,” it concludes that the

15
statement of employee “establishes the applicant has received and read the
handbook . . . , which pointedly draws the reader’s attention to the
arbitration agreement by listing it in the table of contents.” (Some

capitalization omitted.)8
In rejecting a similar argument, one court pointed out: “Nothing in the
acknowledgment forms notified [the employee] either that the Handbook
contained an arbitration clause or that his acceptance of the Handbook
constituted a waiver of his right to a judicial forum in which to resolve his
wage and hour claims. [Citation.] Since the Handbook ‘was informational
rather than contractual’ and [the employer] failed to call attention to the

8 The Statement of Employee that Mayo electronically signed states:
“I have received and read a copy of the 2019 Employee Handbook, and I
acknowledge the following:
“I understand that this handbook represents the current policies,
regulations, and benefits and that except for employment at-will status, any
and all policies or practices can be changed at any time by the Company. The
Company retains the right to add, change, or delete benefits, policies and all
other working conditions at any time (except the policy of ‘at-will
employment’, which may not be changed, altered revised or modified unless
done so in writing signed by the President of the Company.)
“I further understand that nothing in this handbook creates or is
intended to create a promise or representation of continued employment and
that my employment position, and compensation at the Company are at-will
and may be changed or terminated at the will of the Company. I understand
that I have the right to terminate my employment at any time, with or
without cause or notice, and that the Company has a similar right. I further
understand that my status as an ‘at-will’ employee may not be changed
except in writing signed by the President of the Company.
“My signature below certifies that I understand the foregoing
agreement and that it is the sole and entire agreement between the Company
and me. It supersedes all prior agreements, understandings, and
representations (whether written or oral) concerning my employment with
Discovery Health Services.
“DO NOT SIGN UNTIL YOU HAVE READ THE ABOVE
ACKNOWLEDGEMENT AND AGREEMENT.”
16
arbitration requirement in the acknowledgment form, [the employee] should
not be required to arbitrate. [Citation.] . . . ‘To support a conclusion that an
employee has relinquished his or her right to assert an employment-related
claim in court, there must be more than a boilerplate arbitration clause
buried in a lengthy employee handbook . . . . At a minimum, there should be
a specific reference to the duty to arbitrate . . . in the acknowledgment of
receipt form signed by the employee.’ ” (Mendoza v. Trans Valley Transport
(2022) 75 Cal.App.5th 748, 786.)
Discovery Health’s claim lacks merit in light of the fact the statement
of employee that Mayo signed does not refer to an arbitration agreement. We
cannot and will not create a term of a contract between the parties that the
evidence does not show was ever agreed to by the parties. (Code Civ. Proc.,
§ 1858 [“In the construction of a statute or instrument, the office of the Judge
is simply to ascertain and declare what is in terms or in substance contained
therein, not to insert what has been omitted”]; accord, Mitri v. Arnel
Management. Co. (2007) 157 Cal. App.4th 1164, 1173.) We therefore conclude
the trial court did not err by denying the motion to compel arbitration.
II. Sanctions Motion
Mayo contends that in this appeal, Discovery Health attempts “another
bite at the apple,” claiming it “has now had five chances (the original motion
to compel arbitration, the trial court reply brief, the trial court hearing, the
appellant’s opening brief and the appellant’s reply brief) to identify a single
piece of legal authority that would support its positions” that Mayo agreed to
arbitrate her claims. (Some capitalization omitted.) She seeks an award of
sanctions in the amount of $40,620 for her attorney fees incurred.
Although we acknowledge that some of Discovery Health’s arguments
are a rehash of unsuccessful arguments made below and do not adequately

17
address the trial court’s analysis, we cannot deem all of them as frivolous.
“[A]n appeal should be held to be frivolous only when it is prosecuted for an
improper motive—to harass the respondent or delay the effect of an adverse
judgment—or when it indisputably has no merit—when any reasonable
attorney would agree that the appeal is totally and completely without
merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Courts must
use this power “most sparingly to deter only the most egregious conduct”
given the potential chilling effect in taking an appeal. (Id. at pp. 650-651.)
Because we cannot say that any reasonable attorney would find this appeal
totally and completely without merit, we deny the sanctions request.

DISPOSITION
The order is affirmed. Mayo shall recover her costs on appeal.

18
 O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

KELETY, J.

19