Filed 7/27/21 Ramirez v. Millard Mall Services CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
BLANCA RAMIREZ, B305062
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV24167)
v.
MILLARD MALL SERVICES, INC.,
et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael L. Stern, Judge. Affirmed.
Wilson Elser Moskowitz Edelman & Dicker, Steven J. Joffe,
Robert Cooper, and Ashley Morris, for Defendants and
Appellants.
Law Office of Vahe Hovanessian and Vahe Hovanessian for
Plaintiff and Respondent.
Blanca Ramirez (Ramirez) sued her former employer,
defendant and appellant Millard Mall Services, Inc. (Mall
Services), and an individual defendant at the company.
Defendants moved to compel arbitration, which Ramirez opposed
on the ground that she was never presented with an arbitration
agreement and never consented to arbitration during her all-
digital hiring process at the company. The trial court held an
evidentiary hearing, at which Ramirez and a Mall Services
human resources employee testified, and the court denied the
motion to compel because it found there was insufficient proof
Ramirez agreed to arbitrate disputes. We are principally asked
to decide whether Mall Services has made the difficult showing
that no substantial evidence supports the trial court’s ruling.
I. BACKGROUND
Mall Services is a company that provides janitorial services
at shopping malls. From 2007 to 2009 and from 2011 to 2014,
Ramirez worked for Mall Services as a “project manager,” a
salaried position that required her to manage janitors paid on an
hourly basis and to perform janitorial services herself.
In July 2016, Mall Services rehired Ramirez as one of its
project managers. Two years later, after sustaining a work-
related injury and requesting a disability-related accommodation,
Mall Services terminated Ramirez’s employment with the
company. Ramirez later sued Mall Services and her former
supervisor, asserting a wrongful termination claim and a variety
of other causes of action.
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A. Defendants’ Motion to Compel Arbitration
Defendants moved to compel arbitration of Ramirez’s civil
action, claiming she had agreed as an express condition of
employment to arbitrate all claims arising out of her
employment. Defendants’ motion was supported by a declaration
by Mall Services’ director of human resources Gina Fritz (Fritz).
Fritz declared that when Ramirez rejoined the company in
2016, she completed an all-digital onboarding process via a third-
party vendor, myStaffingPro. According to Fritz’s declaration,
Ramirez was sent an email with a link to Mall Services’ portal on
myStaffingPro’s website; Ramirez was required to create a
unique username and password; and the web-based process
would then take Ramirez through a review of company policies,
some of which required electronic initialing—including an
agreement to arbitrate all claims arising out of her employment
with Mall Services (the Arbitration Policy). Fritz explained that
after the policy review, the website directed Ramirez to a policy
acknowledgement form that requires users to type their name,
confirm they reviewed all documents, and affirmatively agree to
all polices disclosed, including the Arbitration Policy, via an
electronic signature.
Also submitted with Mall Services’ motion were several
documentary exhibits, including a copy of the Arbitration Policy
and a printout of an electronically signed policy
acknowledgement form. The Arbitration Policy submitted was
four pages long and provided for arbitration of specified claims
arising out of a Mall Services employee’s employment or
termination. The final page of the policy included a line for an
employee to sign beneath a declaration attesting that the
employee had carefully read the agreement, had an opportunity
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to seek advice from an attorney, and was “giving up [his or her]
right to a jury trial” by “signing this agreement.” The employee
signature line was blank, however, on the copy of the Arbitration
Policy Mall Services submitted. The policy acknowledgement
form Mall Services submitted, however, included a list of eight
policies, including the Arbitration Policy, with boxes next to each
for a user to electronically initial. The text on the form above the
list of policies stated: “Below are the organization’s policy forms.
Each form is a link that can be opened, downloaded, saved,
and/or printed. Once you have reviewed each policy document
you will be asked to enter your initials to confirm that you have
read the Policy Form.” The initials “ber” were included in the
boxes next to each policy, including the Arbitration Policy. The
typed name “Blanca Ramirez,” an electronic signature for Blanca
Estela Ramirez, and a date, were included at the bottom of the
policy acknowledgement form beneath text stating: “I have
viewed and agreed to all policies disclosed.”
B. Ramirez’s Opposition
Ramirez opposed the motion to compel arbitration. Her
opposition did not dispute she completed the electronic
onboarding process via myStaffingPro in 2016. But the
opposition maintained the Arbitration Policy was never
presented for her review and consent during that process. The
opposition further emphasized the Arbitration Policy and policy
acknowledgement form were not produced to her when Mall
Services complied with her earlier request for a copy of her
personnel file; apparently on that basis, the opposition asserted
“the documents presented by Defendants are fabrications
recently attempted to be injected into this case.”
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In a declaration supporting her opposition, Ramirez stated
she did not agree to arbitration when completing the electronic
onboarding process. She declared she retained a copy of all the
documents she signed as part of the onboarding process in 2016
and there was no copy of the Arbitration Policy in her personal
file. Ramirez also explained that when she requested and
received a copy of her personnel file from Mall Services after she
was fired, the documents the company gave her did not contain a
copy of the Arbitration Policy. In addition, Ramirez noted there
was no reference to arbitration in the employee handbook she
received when she rejoined the company in 2016.
C. Defendants’ Reply and Ramirez’s Sur-Reply
In their reply, defendants did not address Ramirez’s
contention that mandatory arbitration was not mentioned in the
employee handbook she received. Instead, they focused on
Ramirez’s fabrication allegation. They argued Ramirez’s
allegation was based solely on speculation and was contrary to
what they argued were undisputed facts: Ramirez admitted she
used the onboarding process to rejoin Mall Services in 2016, the
onboarding process required the generation of a unique username
and password, and computer audit reports established Ramirez
consented to the company’s policies, including mandatory
arbitration of all claims.
In response, Ramirez filed a sur-reply that attached a copy
of an executed policy acknowledgement form of another
employee, Cindy Zuniga Navarrete (Navarrete). Navarrete’s
form was electronically signed in August 2017, more than a year
after Ramirez rejoined Mall Services. Navarrete’s form
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referenced almost twice as many documents, but it did not
contain an arbitration agreement.
D. The Trial Court Hears Live Testimony at an
Evidentiary Hearing and Denies the Motion to
Compel Arbitration
In December 2019, the trial court held an evidentiary
hearing to resolve factual discrepancies in defendants’ motion to
compel arbitration and Ramirez’s opposition. Fritz (Mall
Services’ human resources director) and Ramirez were the only
two witnesses to testify, and the trial court admitted in evidence
copies of the Arbitration Policy and the policy acknowledgement
form that were identical to those submitted with defendants’
motion to compel arbitration.
1. Fritz’s testimony
In a manner consistent with her declaration, Fritz
described the electronic hiring process that Mall Services had in
place when Ramirez was hired in 2016—including, of greatest
relevance for our purposes, the electronic initialing and signing of
the policy acknowledgement form. It was clear from Fritz’s
testimony and the associated exhibits that the text of the
Arbitration Policy would display only if a candidate for
employment affirmatively clicked on the link to that policy; Fritz
testified the system intentionally did not require a signature on
the Arbitration Policy itself (or any of the other policies) “[j]ust
really to save time for the candidates.” Instead, the form
required prospective employees to simply initial next to each item
in the list on the policy acknowledgement form and to
electronically sign that form at the bottom.
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Fritz also testified that once an employee completed the
electronic onboarding process there was “no way to back-edit a
candidate’s records.” On cross-examination, however, Fritz did
concede that between the time Ramirez completed the process
and the hearing, “many system enhancements” had been made to
the process, some of which affected how electronic signatures
displayed on printed out documents.
Fritz also described Mall Services’ onboarding process more
generally. She testified there were nine separate onboarding
processes to accommodate differences in state law, as well as
different classes of employees (e.g., union versus non-union
employees or salaried, managerial employees versus non-
managerial employees paid on an hourly basis). In 2016, when
Ramirez was rehired, only one of the electronic onboarding
processes, the one for salaried managers like Ramirez, required
an arbitration agreement. An arbitration agreement was added
to all of the other onboarding processes near the end of 2017,
which is why the policy acknowledgment form for Navarrete, an
hourly employee hired in mid-2017, did not reference such an
agreement.
As for why a hard copy of the Arbitration Policy was not
included in the copy of the personnel file produced to Ramirez at
her request, Fritz stated the omission was an “oversight.” She
explained Mall Services did not as a matter of course print a hard
copy of every document from the electronic onboarding process
and include those copies in the employee’s personnel file because
one of the purposes of the electronic system was to “eliminate
paper”; consequently, when a copy of Ramirez’s personnel file was
produced, it did not include any of the reviewed documents from
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the onboarding process, not just the Arbitration Policy.
2. Ramirez’s testimony
Ramirez also testified in a manner consistent with her
declaration. She conceded she completed Mall Services’
electronic onboarding process in 2016 and, on the policy
acknowledgement form, clicked to view all the policies listed on
her screen, initialing boxes and signing where required. She
disputed, however, that the Arbitration Policy was listed among
the documents for her to review and accept, and she denied she
ever agreed to arbitration. When asked whether it was possible
that the Arbitration Policy was among the documents made
available to her during the onboarding process but she simply did
not remember, Ramirez said that was not possible “because [she]
studied law, worked with attorneys, and . . . notice[d] those kind
of things immediately.”
Ramirez also testified, without challenge from defendants,
that the employee handbook she was given as a Mall Services
employee made no mention of an arbitration agreement. She
testified the first time she became aware of Mall Services’
arbitration policy was later in November 2017, when she saw a
reference to an arbitration agreement while assisting another
employee with the onboarding process. Ramirez also testified
that when she sought assistance “troubleshooting” problems with
the electronic onboarding process she encountered as a manager
responsible for shepherding the hiring of other employees, she
was told the human resources department and myStaffingPro
had the ability to “rescind” an employee’s information because
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the system did not process it properly, as well as to make other
changes.1
3. The trial court’s ruling
The trial court accepted written closing arguments from
both sides after the evidentiary hearing and later issued an order
denying defendants’ motion to compel arbitration. The court
ruled defendants had not met their burden to show it was “more
likely than not that [Ramirez] electronically signed off on the
terms of an arbitration agreement when she was rehired in July
2016.” Explaining, the court added: “There is insufficient proof
of a conscious execution of an agreement by [Ramirez] to
arbitrate her employment disputes with . . . defendant[s].
Defendant[s] did not adequately explain why such a critical
document [the Arbitration Policy] was not in [Ramirez’s]
personnel file when she reviewed it.”
II. DISCUSSION
On appeal, defendants advance three arguments for
reversal; two are easily dismissed and the third, which challenges
the sufficiency of the evidence to support the trial court’s ruling
that defendants did not prove the existence of an arbitration
1
Defendants objected to this testimony on hearsay grounds.
The trial court did not rule on the objection and defendants did
not request a ruling or re-raise their objection in their subsequent
written closing argument. The objection was accordingly
forfeited. (See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 306,
fn. 4.)
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agreement, fails under the deferential standard of review we
employ.
A. Defendants’ Argument that Ramirez Impliedly
Consented to Arbitration by Continuing to Work at
Mall Services Is Forfeited and the Argument that the
Court’s Ruling Runs Afoul of the Federal Arbitration
Act Is Meritless
Defendants argue Ramirez impliedly consented to the
Arbitration Policy because she continued working for Mall
Services after learning in 2017 that an agreement to arbitrate
had been made a condition of employment for all employees.
Defendants, however, did not make this argument in the trial
court and it cannot be made now on appeal. (Sea & Sage
Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417
(Sea & Sage); accord, Ochoa v. Pacific Gas & Electric Co. (1998)
61 Cal.App.4th 1480, 1488, fn. 3 [because appellant did not raise
the issue of nonphysical damages in her “opposition papers or
during argument below,” the issue “was neither considered nor
ruled upon by the trial court. It is axiomatic that arguments not
asserted below are waived and will not be considered for the first
time on appeal”].) We do have discretion to excuse the forfeiture,
but we exercise that discretion “most frequently . . . when
‘important issues of public policy are at issue.’ [Citations.]” (Sea
& Sage, supra, at 417.) That is not the case here, and we
accordingly decline to consider defendants’ implied consent
argument.
Defendants also argue the trial court evaluated whether
there was mutual assent to the Arbitration Policy using a
standard different than the standard the court would use when
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considering objective mutual assent to a contract generally—a
violation of the Federal Arbitration Act, as defendants see it. The
entire premise for this argument is the trial court’s use of the
phrase “conscious execution of an agreement” when explaining
why the court believed defendants had not carried their burden
to prove mutual assent to arbitration.
Defendants’ argument reads far too much into the trial
court’s turn of phrase. The modifier “conscious” may not be
strictly necessary, but nor is it problematic: it adds nothing of
substance (of course someone executing an agreement must be
conscious—and that applies to any agreement) and in context it
is used merely to emphasize (in the same way the word “actually”
would) that the court disbelieved Ramirez assented to the
Arbitration Policy under all of the attendant circumstances. The
trial court’s diction does not reveal a Federal Arbitration Act
violation. (Pinnacle Museum Tower Assn. v. Pinnacle Market
Development (US), LLC (2012) 55 Cal.4th 223, 236 [“it is a
cardinal principle that arbitration under the FAA ‘is a matter of
consent, not coercion.’ [Citation.] Thus, ‘“a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit”’”]; Avery v. Integrated Healthcare Holdings,
Inc. (2013) 218 Cal.App.4th 50, 60; Banner Entertainment, Inc. v.
Superior Court (1998) 62 Cal.App.4th 348, 357 [“the FAA does
not apply until the existence of an enforceable arbitration
agreement is established under state law principles involving
formation, revocation and enforcement of contracts generally”].)
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B. Substantial Evidence Supports the Trial Court’s
Determination That Defendants Did Not Prove
Ramirez Agreed to Arbitration
Coming to the real crux of defendants’ gripe with the trial
court’s ruling, they argue no substantial evidence supports the
trial court’s determination that they did not carry their burden to
prove Ramirez assented to the Arbitration Policy. The thrust of
their argument is that Ramirez’s recollection of the onboarding
process was insufficient to contradict or impeach Fritz’s
testimony authenticating Ramirez’s electronic consent to the
Arbitration Policy, particularly when Ramirez presented no
expert testimony of her own. The question is thus a factual one,
and defendants’ argument fails because substantial evidence
supports the determination the trial court made after holding an
evidentiary hearing. (See, e.g., Martinez v. BaronHR, Inc. (2020)
51 Cal.App.5th 962, 966 [whether mutual assent to arbitration
existed is a question of fact and evaluated using the substantial
evidence standard of review] (Martinez).)
When viewed through the substantial evidence lens, the
question we must resolve is an easy one. Even putting Ramirez’s
testimony aside, the trial court was entitled to simply disbelieve
Fritz’s testimony about how the onboarding process worked or
whether it was possible to alter an employee’s personnel
documents after the onboarding process was complete. (See, e.g.,
Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31
Cal.App.5th 840, 859 [“we presume the court found every fact and
drew every permissible inference necessary to support its
judgment or order, and we defer to the court’s determination of
credibility of the witnesses and weight of the evidence in
resolving disputed facts”]; Martinez, supra, 51 Cal.App.5th at
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966-967 [relying on an implied credibility finding by the trial
court]; see also In re Resendiz (2001) 25 Cal.4th 230, 249 [“any
factual determinations made below ‘are entitled to great
weight . . . when supported by the record, particularly with
respect to questions of or depending upon the credibility of
witnesses the [superior court] heard and observed”], disapproved
on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 369-
370.) So disbelieved, that alone would doom defendants’ effort to
compel arbitration.
Ramirez did testify, however, and that made the issue at
best a she-said-she-said dispute. The trial court could reasonably
decide to credit Ramirez’s testimony—the only party who could
say from personal knowledge what actually appeared on her
computer screen when completing the digital onboarding
process—over Fritz’s testimony about how the onboarding
process was designed to operate or typically operated. (People v.
Barnwell (2007) 41 Cal.4th 1038, 1052 [“Even when there is a
significant amount of countervailing evidence, the testimony of a
single witness that satisfies the standard is sufficient to uphold
the finding”]; accord, Jensen v. BMW of North America, Inc.
(1995) 35 Cal.App.4th 112, 134 [“the testimony of a single
witness, even the party [it]self, may be sufficient” to constitute
substantial evidence]; see also Evid. Code, § 411 [“the direct
evidence of one witness who is entitled to full credit is sufficient
for proof of any fact”].) Indeed, there was testimony from both
Fritz and Ramirez that established there were nine separate
onboarding processes used by Mall Services—only one of which at
the time of Ramirez’s hiring required an employee’s consent to
mandatory arbitration—and it was uncontested that Ramirez’s
employee handbook made no reference to arbitration. This was
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evidence lending further support to Ramirez’s adamant
testimony that she had not been presented with an arbitration
agreement when completing the hiring process. In addition,
Ramirez contradicted Fritz’s testimony that it was not possible to
alter onboarding forms after initial completion and the trial
judge, who saw and heard the witnesses testify, again was
entitled to disbelieve Fritz’s account. Resting on any or all of
these reasons, there is substantial evidence supporting the trial
court’s factual finding that there was no mutual assent to
arbitration.
The facts in Espejo v. Southern California Permanente
Medical Group (2016) 246 Cal.App.4th 1047 (Espejo), the case
chiefly relied on by defendants to seek reversal, are significantly
different from the facts here. Most significantly, there was no
evidentiary hearing held by the trial court in Espejo and the trial
court denied the motion to compel in that case not because it
made a determination on disputed facts but because it
erroneously (as the Court of Appeal held) excluded a
supplemental declaration filed by the defendant that described
the electronic hiring process. (Id. at 1051, 1060.) Further, the
issue in Espejo was merely one of authentication—whether the
defendant sufficiently authenticated the signature on an
electronically completed agreement covering dispute resolution
(id. at 1062)—whereas here there is no authentication issue.
Ramirez does not deny signing the policy acknowledgement form
electronically, she denies only that the Arbitration Policy was
among the documents presented to her for agreement. Nothing
in Espejo is therefore inconsistent with the conclusion we have
already drawn: substantial evidence supports the trial court’s
finding that there was no mutual assent to arbitration.
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DISPOSITION
The order denying defendant’s motion to compel arbitration
is affirmed. Ramirez is awarded any costs on appeal she may
have incurred.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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