Opinion
A151253
08-10-2018
MARIA RECINOS et al., Plaintiffs and Respondents, v. SBM SITE SERVICES LLC, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16CIV02828)
Defendant SBM Site Services LLC appeals from the order of the trial court denying its motion to compel arbitration as to three plaintiffs in the underlying employment-related lawsuit. The ruling was based on the court's finding that the plaintiffs had not signed the arbitration agreement provision contained in their job applications. We conclude the court properly denied the motion to compel, and thus we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs Maria Recinos, Jose La Serna, and Giuliana Ortiz are former employees of defendant, a janitorial and building maintenance services provider. Plaintiffs worked for janitorial contractors at the Genentech campus in South San Francisco for several years before defendant took over the contracted services. Defendant began its operations at Genentech in June 2011.
On December 14, 2016, plaintiffs and three of their coworkers filed a complaint against defendant alleging causes of action for (1) sex and gender discrimination, (2) sexual harassment and hostile work environment, (3) failure to prevent harassment and discrimination, (4) retaliation, (5) gender violence, (6) wrongful termination and constructive termination, (7) intentional infliction of emotional distress, and (8) negligent hiring, supervision, or retention of employees.
The three other plaintiffs in this lawsuit are not parties to this appeal because the trial court compelled their claims to arbitration.
Four of the six plaintiffs, including Recinos and Ortiz, alleged they were sexually harassed and discriminated against by SBM employees, leads, or supervisors. The wrongful acts included verbal harassment, sexual assaults, and workplace intimidation. SBM managers allegedly did not properly investigate plaintiffs' complaints of harassment, exonerating the alleged perpetrators and allowing them to continue working for the company. The managers also retaliated against the four plaintiffs and terminated the two other plaintiffs, including La Serna, who had assisted them in reporting their harassment complaints.
On March 17, 2017, defendant filed motions to stay the action and to compel arbitration. Defendant asserted that each of the plaintiffs was bound by a mandatory arbitration agreement contained in the employment application.
The application filled out by plaintiffs is written in Spanish. The application consists of several sections, each separated by double lines. The first part of the application consists of sections in which the applicant is asked for background information, including personal information, educational history, prior jobs, references, eligibility to work in the United States, and criminal history. These sections are followed by a section titled "Agreements," which contains two provisions with lines for the applicant to initial. The first provision authorizes defendant to investigate the statements made in the application, including contacting former employers. The second provision affirms the at-will nature of any employment and the employee's agreement that (translated into English) "[i]f the Company employs me, I accept to abide by the rules and regulations of the Company."
The next section contains an arbitration provision (translated) that provides, in part: "In order to resolve claims that emerge from the application process or the employment relationship (if I am offered a job) in an efficient and cost-effective manner, the company and I agree that any and all claims that could be subjected to a court of law, including but not limited to claims of harassment or illegal discrimination . . ., will be subjected to be concluded in binding arbitration, and not to any other forum." The section also states that "arbitration will be the exclusive way of resolving any claim that may arise from [the] employment application and employment (if any), and no action will be filed in any court or other forum." There is a full signature line immediately below the final sentence of the arbitration section. That sentence states: "This Arbitration Agreement Is A Waiver Of All Rights To A Civil Trial For A Claim Of Harassment, Discrimination, Unjust Loss Of Employment, Or Any Other Claim That Should Arise From My Application For Employment Or Employment (if any)."
The signature line in the arbitration section is followed by a double line that separates it from the last section of the application. The last section (translated) states: "My signature below certifies that I have read and understand this application, and to the best of my knowledge the information on this form is true and accurate. My signature below also certifies that I am agreeing to be bound to the employment terms and conditions established in this application. This application contains all of the understandings and agreements between the company and myself in regard to my employment, if any, and it supersedes any previous and/or contemporary practices, verbal and written agreements, understandings, representations and promises, expressed or implied, between the Company and myself." We will refer to this section as the "certification section."
On April 7, 2017, plaintiffs filed their opposition to the motion to compel arbitration.
On April 13, 2017, defendant filed its reply in support of its motion. With its reply, defendant submitted three new declarations.
On April 27, 2017, plaintiffs filed a sur-reply to defendant's reply brief.
On May 3, 2017, the trial court issued its order denying the motion to compel arbitration as to Recinos, La Serna, and Ortiz, finding that they had not agreed to be bound by the arbitration provision. The ruling was primarily based on findings that the three plaintiffs had not signed the arbitration agreement section of defendant's job application form. This appeal followed.
The trial court found the agreement was enforceable as to the other three plaintiffs because there was no dispute that they had signed the arbitration agreement and the agreement itself was deemed enforceable.
DISCUSSION
I. Relevant Law , Burden of Proof , and Standard of Review.
A written agreement to arbitrate is enforceable. (Code Civ. Proc., § 1281; Sparks v. Vista del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1517 (Sparks).) A court's first task when considering a motion to compel arbitration is to determine whether the parties have entered into an agreement to arbitrate their disputes. (Sparks, at pp. 1517-1518.) "Because arbitration is a contractual matter, a party that has not agreed to arbitrate a dispute cannot be compelled to do so." (Id. at p. 1518.)
A party seeking to compel arbitration has the burden of proving the existence of a valid agreement, and a party opposing arbitration has the burden of proving any defense to arbitration. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) In the summary proceeding on a motion to compel arbitration, "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." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; see Espejo v. Southern California Permanente Group (2016) 246 Cal.App.4th 1047, 1057-1058.)
If the trial court's order denying a motion to compel arbitration is based on a decision of fact, then the substantial evidence standard applies; if the order is based on a decision of law, then the de novo standard applies. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 686; Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) " '[W]e review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record.' " (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 571, fn. 3.)
"[T]he applicable standards of appellate review of a judgment based on affidavits or declarations are the same as for a judgment following oral testimony: We must accept the trial court's resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence." (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923; see Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 286 ["We accept the trial court's credibility determinations and do not reweigh the evidence on appeal"]; Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 868, fn. 1 ["our standard of review is substantial evidence, with due deference to the trial court's resolution of factual conflicts, regardless of whether the evidence is oral or documentary"].) We also must accept the trial court's resolution of conflicting inferences arising from the evidence. Thus, "[i]f the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm." (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.) II. La Serna's Job Application
Because the trial court considered only "written" evidence, defendant argues the standard of review as to all aspects of whether the parties formed a valid agreement to arbitrate is de novo, citing Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1369 and Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659, 1663. Although the law on this issue is in some disarray, in our view the weight of authority supports the position that we review disputed questions of fact for substantial evidence. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 422 (Craig) [affirming order compelling arbitration where substantial evidence that parties reached agreement to arbitrate]; Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653 [substantial evidence supported trial court's denial of petition to compel arbitration].)
A. The Arbitration Provision Is Not Signed
It is undisputed that La Serna did not sign and date below the paragraph containing the arbitration provision. However, he did sign at the certification section located at the bottom of the four-page application. In his declaration submitted in opposition to defendant's motion, La Serna stated his belief that the reason he did not sign the arbitration provision was "because I was uncertain of its meaning and impact." He understood that there was a grievance procedure between his union and defendant, which was also referred to as "arbitration." He also had understood from his union that he was not required to sign documents that were covered by the collective bargaining agreement, such as drug testing agreements and credit history checks.
While our decision is not based on this extrinsic evidence, we note that such evidence can be considered in assisting in the interpretation of a contract to clarify ambiguities. " ' "An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence . . . ." ' " (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238.) Further, a contractual provision " ' "will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable." ' " (Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390-391.) "[A]mbiguities in written agreements are to be construed against their drafters." (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 247.) Extrinsic evidence can be offered not only " 'where it is obvious that a contract term is ambiguous, but also to expose a latent ambiguity.' " (Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 920.)
Defendant contends La Serna is bound by the arbitration agreement because he signed the final certification section of the employment application, thereby agreeing " ' to be bound to the employment terms and conditions established in this application.' " The trial court held that no arbitration agreement was formed because La Serna did not sign the application in the space that accompanies the arbitration section.
B. Legal Principles for Contract Formation
General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate. (Pinnacle, supra, 55 Cal.4th at p. 236.) The essential elements of a contract are: "(1) parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration." (Marshall & Co. v. Weisel (1966) 242 Cal.App.2d 191, 196 (citing Civ. Code, § 1550).) Our analysis focuses on the second element: the parties' consent.
"There is no contract until there is mutual consent of the parties." (Deleon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 813 (citing Civ. Code, §§ 1550, 1565). "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." (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.) Mutual consent is typically "manifested by an offer communicated to the offeree and an acceptance communicated to the offeror." (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 271.) " ' "An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his [or her] assent to that bargain is invited and will conclude it." ' " (City of Moorpark v. Moorpark Unified School Dist. (1991) 54 Cal.3d 921, 930.) The second part of contract formation is acceptance. One form of acceptance is a signature to an agreement. (Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049.)
C. La Serna Did Not Consent to Arbitration
Courts have held that "the lack of a perfected written arbitration agreement does not conclusively establish the absence of an agreement to arbitrate." (Basura v. U.S. Home Corp. (2002) 98 Cal.App.4th 1205, 1216.) For example, the lack of a signature by an employee may or may not be material in the employment context if the writing memorializing an arbitration agreement is not signed by all the parties. As explained in Craig, supra, 84 Cal.App.4th 416: "General principles of contract law determine whether the parties have entered a binding agreement to arbitrate. [Citation.] This means that a party's acceptance of an agreement to arbitrate may be express [citations] or implied-in-fact where, as here, the employee's continued employment constitutes her acceptance of an agreement proposed by her employer." (Id. at p. 420.)
In Craig, the court found an implied arbitration agreement where the defendant employer had established a dispute resolution program that included mandatory arbitration. (Craig, supra, 84 Cal.App.4th at pp. 418-419.) In a memorandum sent to all employees, including the plaintiff at her home address, the employer explained the program and stressed that "everyone would be bound by it." (Id. at p. 419.) After being terminated several years later, the plaintiff brought suit, and the company moved to compel arbitration. (Id. at pp. 419-420.) The trial court granted the petition, and the Court of Appeal affirmed. (Id. at pp. 420, 423.) The appellate court reasoned that a party's acceptance of an arbitration agreement may be not only express, but also implied-in-fact. (Id. at p. 420.) Because the plaintiff continued to work for the company after she received the dispute resolution memorandum, the court held she "thereby agreed to be bound by the terms of the Dispute Resolution Program, including its provision for binding arbitration." (Id. at p. 422.)
However, appellate courts have distinguished cases where the arbitration agreement requires an employee to provide a signature. In Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153 (Romo), for example, the plaintiff signed an employee handbook that had an arbitration provision containing a signature line. The plaintiff did not sign where indicated in the arbitration section, but did sign an acknowledgment at the end of the handbook. (Id. at p. 1157.) The Court of Appeal concluded that the arbitration provision was not enforceable and denied the employer's motion to compel arbitration. (Id. at pp. 1159-1160.) " '[R]ead as a whole, the [arbitration agreement within the employment handbook] in this case contemplated that the arbitration of disputes provision would be effective only if both [parties] assented to that [particular] provision. Since the [parties] did not assent to this [particular] provision the parties did not agree to binding arbitration.' " (Id. at p. 1160, quoting Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 91.)
Also, in Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497 (Gorlach), the employees were presented with a new employee handbook that contained a provision stating that, as a condition of employment, all employees must sign an arbitration agreement. The plaintiff employee declined to sign the agreement and continued working. (Id. at p. 1500.) The court concluded that the plaintiff's continued employment did not create an implied-in-fact arbitration agreement. (Id. at pp. 1507-1510.) The court distinguished Craig, supra, 84 Cal.App.4th 416, on the basis that the employer in Craig had expressly required its employees to sign the agreement. (Gorlach, at pp. 1508-1509.)
Similarly, in Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164 (Mitri), the employee handbook contained an arbitration policy stating that employees would be required to sign a separate arbitration agreement. (Id. at p. 1167.) None of the affected employees signed the separate agreement. (Id. at p. 1168.) Therefore, the appellate court concluded there was no effective agreement to arbitrate because the employees had not consented to be bound by it. (Id. at p. 1173.)
As in Romo, Gorlach, and Mitri, the arbitration provision is separately set forth in the job application and includes a separate signature. La Serna signed the certification section at the end of job application but declined to sign the arbitration provision. The trial court reasonably concluded that the arbitration provision was a separate agreement and would not be enforceable unless La Serna signed the associated signature block line.
D. Defendant's Authorities Are Inapposite
Defendant argues that "[c]ourts routinely have concluded that a party's signature on a document is objective evidence of an intent to be bound, even if that party fails to sign or initial next to a particular provision in the document." It relies on federal and out-of-state cases that are not persuasive.
In Anderson v. Pitney Bowes, Inc. (N.D.Cal. May 4, 2005, Civ. No. C 04-4808 SBA) 2005 WL 1048700) (Anderson), a plaintiff-employee had signed a statement as part of the application process, providing that as a condition of his employment he would be required to sign and comply with an alternate dispute resolution process ending with binding arbitration. He also signed an agreement requiring the parties to submit any claims related to termination, violation of public policy, and discrimination to binding arbitration. (Id. at p. *1.)
On the first page, in bold font, the agreement stated that, " 'By signing the Agreement You are specifically acknowledging that you have had an opportunity to review the [arbitration program] and agree to abide by its terms.' " (Anderson, supra, 2005 WL 1048700, at p. *1.) The agreement's last paragraph is a section entitled "Voluntary Agreement." It states: " 'I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF. I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL.' " (Ibid., italics and boldface added.) Directly underneath this section was a separate line for an employee to initial acknowledgment of this paragraph. It was undisputed that the plaintiff did not place his initials on this separate line. The parties also did not dispute that he signed on the signature line at the end of the agreement. (Ibid.)
The employer sought to compel arbitration based on the executed statement and agreement. The plaintiff asserted that his "conscious refusal" to initial the "Voluntary Agreement" paragraph showed that he did not agree to arbitrate his claims. (Anderson, supra, 2005 WL 1048700, at p. *2.) The court noted that the two documents he did sign "unambiguously evidence the parties [sic] intent to submit certain disputes exclusively to arbitration. (Id. at p. *3, fn. 7.) It stated: "Further, the 'Voluntary Agreement' paragraph states that: 'I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL. . . . Consequently, [an] . . . employee forfeits his right to a jury trial when he signs the Agreement, not when he places his initials by the 'Voluntary Agreement' paragraph." (Ibid., first italics added.)
Here, unlike the case in Anderson, the application La Serna signed does not have clear and unmistakable language that assenting to arbitration was a condition of employment. For example, the language in the certifying statement portion at the end of the application makes no specific reference to an agreement to arbitrate, instead stating that La Serna agreed to the "employment terms and conditions established in this application." (Italics added.) The arbitration provision is contained in its own specifically apportioned section that contains its own signature block. The self-contained nature of this provision suggests that the applicant's signature is necessary to establish agreement to its terms, otherwise there is no reasonable explanation as to why the two signature lines are placed in such immediate proximity. We conclude an objective interpretation of the job application is that execution of the certification section, by itself, does not show assent to the arbitration provision.
In Burgoon v. Narconon of N. Cal. (N.D.Cal. Jan. 15, 2016, Civ. No. 15-cv-01381-EMC) 2016 U.S. Dist. LEXIS 5489) (Burgoon), also relied on by defendant, two plaintiffs had signed drug treatment program admission agreements that contained arbitration provisions. (Id. at p. *5.) Plaintiff Landers argued that he should not be compelled to arbitration because he did not initial the specific arbitration provision in his application. (Id. at p. *24.) The court concluded that "[a]lthough he did not initial the specific arbitration provision, he did sign the admission agreement. Mr. Landers's failure to initial the arbitration provision may be probative of procedural unconscionability but it is not enough, in and of itself, to show that Mr. Landers did not enter into the contract given his signature at the end of the document." (Ibid.)
Similarly, in Hartung v. J.D. Byrider, Inc. (E.D.Cal. Oct. 16, 2008, Civ. No. 1:08-cv-00960-AWI-GSA) 2008 U.S. Dist. LEXIS 86972 (Hartung), the plaintiff did not initial the arbitration provision in a retail installment agreement, though she did sign the contract. (Id. at p. *4.) She also initialed and signed her understanding that the contract contained an arbitration provision in a companion document to the contract. (Ibid.) The court noted the contract had included a conspicuous notice of the arbitration provision, and that she also had initialed a portion of a related statement indicating her understanding that the contract contained an arbitration provision. The court concluded she had assented to the arbitration provision included therein. (Id. at pp. *17-*18.) Burgoon and Hartung are distinguishable from the present case for the reasons stated above in our discussion of Anderson.
Finally, defendant cites to Elsken v. Network Multi-Family Sec. Corp. (10th Cir. 1995) 49 F.3d 1470, 1473. In that case, the Tenth Circuit held that the plaintiff was bound by a limitation of liability clause, even though the clause appeared on the reverse side of the agreement and had not been initialed or read by her. (Id. at pp. 1473-1474.) The Court of Appeals concluded that because she had signed the contract directly below a statement that declared she was agreeing to the entire contract, in addition to further emphasizing the limitation of liability clause, the plaintiff had "agreed to the contract in its entirety as written." (Id. at p. 1474.) Again, for the reasons stated above, the case is factually distinguishable.
The statement provided, in part: " 'Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly paragraph 3.0 limitation of liability.' " (Elsken, supra, 49 F.3d at p. 1474.)
As the trial court noted, the Application does not state that arbitration is a term and condition of employment, and the arbitration clause is not referenced in the certifying section of the application that La Serna did sign. Nor does defendant's position explain why the separate signature line for the arbitration agreement is included. Assuming that the Application is ambiguous with respect to the meaning and effect of the separate signature block line following the arbitration section, any ambiguity must be construed against the drafter, i.e., defendant. (Rebolledo v. Tilly's, Inc. (2014) 228 Cal.App.4th 900, 913.) It is elemental that a party can be compelled to arbitrate only those issues he or she agreed to arbitrate. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 705; accord, Matthau v. Superior Court (2007) 151 Cal.App.4th 593, 598 ["right to arbitration depends on a contract, and a party can be compelled to submit a dispute to arbitration only if the party has agreed in writing to do so"].) The policy favoring arbitration does not displace the necessity for a voluntary agreement to arbitrate. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739.) We will not presume that La Serna consented to be bound by a provision that he did not sign.
Defendant also draws our attention to extrinsic evidence in the form of two acknowledgment documents that La Serna signed. In the first document, titled "Welcome to the new employee orientation," La Serna acknowledged receipt of various employment documents, none of which appear to have referenced an agreement to arbitrate. He also signed an "Acknowledgment of Receipt of Employee Handbook and Safety Manual." The handbook, however, is not contained in the record on appeal. III. Ortiz
Ortiz's personnel records contain the Spanish-language version of her employment application. Her application is partially completed. As in La Serna's application, the arbitration provision's signature block is not signed. Additionally, unlike La Serna, Ortiz did not sign the concluding paragraph's signature block. The above discussion regarding La Serna is applicable to Ortiz's case. Indeed, it applies even more so because it is undisputed that she did not sign any portion of the application. Defendant's argument that she impliedly accepted arbitration by accepting the job fails for the reasons stated above.
Further, defendant's argument that Ortiz is equitably estopped from denying arbitration is not persuasive. Defendant relies on Goldman v. KPMG, LLP (2009) 173 Cal.App.4th, 209, 220, fn. 5 (Goldman) and JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1238-1240 (JSM Tuscany). The Goldman footnote defendant cites to simply quotes a portion of International Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH (4th Cir. 2000) 206 F.3d 411, 418, a Fourth Circuit Court of Appeals case that applied federal substantive law of arbitrability in determining whether a nonsignatory is bound to an arbitration contract. The case is inapposite in that this case is not being brought in federal court. More significantly, the Fourth Circuit was considering circumstances involving third parties to an arbitration contract, not a situation where an original party failed to sign an arbitration provision. JSM Tuscany is inapposite for the same reason. (See JSM Tuscany, at pp. 1239-1240 ["When that plaintiff is suing on a contract—on the basis that, even though the plaintiff was not a party to the contract, the plaintiff is nonetheless entitled to recover for its breach, the plaintiff should be equitably estopped from repudiating the contract's arbitration clause." (Italics added.)].) IV. Recinos
Recinos's personnel records also contain the Spanish-language version of the employment application. The application is signed; however, Recinos separately asserted below that she did "not recall" seeing or completing the employment application. She also denied that the signatures and initials on the application were hers, providing exemplars that she alleged contained her actual signature and handwriting. Defendant disputed Recinos's contention that her signature was "forged," submitting several additional exemplars of her signature that it asserted were similar to the signature on the employment application. The trial court concluded that defendant had failed "to offer any evidence in response to show that there was a valid agreement to arbitrate."
Defendant asserts that the trial court misunderstood the record and overlooked its submissions because it had offered two declarations from its director of human resources that attached several uncontested exemplars of Recinos's signature in an effort to show that they matched the signatures on her employment application. The trier of fact may examine signatures to determine their similarity or dissimilarity without the testimony of a handwriting expert. (See People v. Storke (1900) 128 Cal. 486, 488; People v. Chapman (1957) 156 Cal.App.2d 151, 159; Estate of Kisling (1945) 68 Cal.App.2d 163, 167.)
From the trial court's order, it is unclear to us that the court entirely failed to consider defendant's submissions. Instead, it appears the court found defendant's offerings did not "show that there was a valid agreement to arbitrate." The court evidently determined that the signatures on Recinos's employment application were dissimilar from the exemplars defendant provided. In any event, at defendant's invitation we have reviewed the signatures and do not see any reason to overturn the lower court's findings. There are distinctions between the exemplars and the application. For example, we note that the application has Recinos's initials as "R.M." rather than as "M.C.R." This reversal of her initials, and the omission of her middle initial, is not accounted for in the evidence defendant submitted, further supporting the conclusion that Recinos did not execute the application.
In sum, we hold the trial court correctly found that plaintiffs did not agree to be bound by the arbitration clause contained in the job application. In light of our conclusions, we need not address the parties' remaining contentions.
DISPOSITION
The order is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.