Holland v. Trav Corp.

Filed 3/16/07 Holland v. Trav Corp. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Richard Fruin, Judge. Affirmed.

Duane Morris, Keith Zakarin, Edward M. Cramp, and Brian D. Murphy for Defendants and Appellants.

Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich and Nicholas W. Sarris for Plaintiff and Respondent.

________________________

I. introduction

Defendants, Trav Corporation doing business as Westwood College (the college) and Marshall Vallelunga, appeal from an order denying their petition to compel arbitration of a defamation action filed by plaintiff, James Holland. Plaintiff was employed as an adjunct professor at Westwood College from January 2003 until May 2005. We affirm.

II. Background

The first amended complaint alleged that in May 2004, Mr. Vallelunga became Program Director of the Technology Department at the Los Angeles campus of the college. Between December 2002 and May 2004, plaintiff worked at the Los Angeles campus as an adjunct professor within the Technology Department. Plaintiff alleged that he performed his teaching duties in the utmost professional and diligent manner during the time he was employed at the Los Angeles campus. Plaintiff was offered extended adjunct professor employment offers for every school term. Plaintiff received excellence awards, excellent evaluations, and a salary increase.

The first amended complaint further alleged that, in September 2004, Mr. Vallelunga offered plaintiff continued employment at a significant salary reduction. Mr. Vallelunga rescinded the employment contract three times with salary adjustments. In November 2004, plaintiff accepted an offer to teach the next term but defendant Vallelunga rescinded the contract on multiple occasions. On December 15, 2004, Mr. Vallelunga informed plaintiff that the contract was rescinded due to a reduced workforce. Plaintiff subsequently obtained a teaching position at a different campus for the March 2005 term. While teaching the March 2005 term, plaintiff applied for two positions for the May 2005 term. The college did not offer plaintiff a position based on negative comments made by Mr. Vallelunga. Mr. Vallelunga stated that plaintiff was incompetent, did not know the material needed to teach classes and prevented others from getting jobs at the colleges Upland Campus.

Defendants filed a petition to compel arbitration pursuant to the title 1 of United States Arbitration Act and the California Arbitration Act on the ground plaintiff agreed to arbitrate the dispute. (9 U.S.C.  1 et seq.; Code Civ. Proc.,  1281 et seq.) In support of the petition, defendants filed the declaration of Jaelyn R. Young, the human resources senior manager, for Alta Colleges, Inc. which owns and operates Trav Corporation. Mr. Young declared that the school employees are required to participate in a Dispute Resolution Program and resolve disputes with binding arbitration. The college implemented the policy on May 1, 2003. Employees hired after May 1, 2003, were required to participate in binding arbitration as a condition of employment. The arbitration agreement provides in part, [T]he Company and I agree that any dispute or controversy arising out of, relating to, or in any way connected to my employment with the company, whether or not arising out of this Agreement, its interpretation, validity, construction, performance, breach, or termination, shall be settled by binding neutral arbitration in accordance with the then in effect JAMS Employment Arbitration Rules & Procedures and Minimum Standards of Procedural Fairness (the Rules).

Mr. Young further declared the school notified new and existing employees of the mandatory arbitration provisions. The employees received a copy of the Dispute Resolution Program Agreement which contained the arbitration agreement. They also were provided with access to a website which contained information about the arbitration process and the Dispute Resolution Program. The website contained a document displaying frequently asked questions of the employee concerning the dispute resolution process of May 2003. The website stated: If you applied for a job or were hired on or after May 1, 2003, the entire Dispute Resolution Program is a condition of your employment with the Company. You are automatically included in, and you may not opt out of, the arbitration component of the Dispute Resolution Program. (Emphasis omitted.)

Mr. Young explained that many of the schools adjunct professors work part time. They are offered employment by the school to teach classes for a specific scholastic term. At the end of each term, the employees are terminated. As a condition of employment, every instructor is obligated to adhere to the published school guidelines and policies including the Dispute Resolution Program.

On January 8, 2003, plaintiff was offered his first employment at-will, part-time contract at the school. The employment contract was terminated at the end of the January 2003 class term. Plaintiff was offered a new employment contract for the next term and over the course of the next two years for more than eight scholastic terms. Between January 2003 and March 2005, there were eight agreements between plaintiff and the college. Mr. Young declared that each new contract consisted of an offer letter from the school and an executed addendum to the offer letter. The addendum contained the courses that would be taught, the weekly schedule, and the compensation for services.

Mr. Young also declared that plaintiff began working for the school the term before the Dispute Resolution Program went into effect. Plaintiff had the option of opting out of the Dispute Resolution Program which he elected to do. A copy of plaintiffs acknowledgement of receipt of the Dispute Resolution Program package dated June 4, 2003 and the opt-out form were attached to Mr. Youngs declaration as exhibits 3 and 4. The acknowledgement provides in part: I understand that if I do not wish to participate in Westwood College of Technology/Westwood College of Aviation Technologys Dispute Resolution Program, I must complete and return the Opt Out Form to Westwood College of Technology/Westwood College of Aviation Technologys Human Resources department within 30 days from today. . . .  []  I further understand that UNLESS I OPT OUT OF THIS DISPUTE RESOLUTION PROGRAM IN THE MANNER REQUIRED, I WILL BE AUTOMATICALLY INCLUDED IN THE DISPUTE RESOLUTION PROGRAM AND I WILL BE REQUIRED TO ARBITRATE ALL LEGAL DISPUTES WITH THE COMPANY. []  I further understand that I am free to choose whether to participate in the Dispute Resolution Program and if I decide to opt out of the Dispute Resolution Program, my decision will not affect my employment in any way. (Emphasis omitted.) The acknowledgment is signed and dated June 4, 2003.

The opt-out form was signed and dated June 6, 2003. It provides in part that plaintiff elected to opt out of the Dispute Resolution Program. It further provides: I understand that my decision to opt out of the Dispute Resolution Program will not be effective unless I complete and return this form to Westwood College of Technology/Westwood College of Aviation Technologys Human Resources department by U.S. mail . . . within 30 days from my receipt of the Westwood College of Technology/Westwood College of Aviation Technologys Dispute Resolution Program Package . . . . []  I further understand that if I do not return a completed Opt Out form to Westwood College of Technology/Westwood College of Aviation Technology Human Resource Department within 30 days of my receipt of the Dispute Resolution Program Package, I will be automatically made part of the Dispute Resolution Program and I will be required to arbitrate all legal disputes with Westwood College of Technology/Westwood College of Aviation Technology. []  I further understand that I am free to choose whether to participate in the Dispute Resolution Program and if I decide to opt out of the Dispute Resolution Program, my decision will not affect my employment in any way. Mr. Young also declared that at the end of the May 2003 scholastic term, plaintiffs employment was terminated. Plaintiff was later re-hired but as a condition of being re-hired, plaintiff was required to participate in the Dispute Resolution Program.

Plaintiff opposed the petition to compel arbitration on the ground he executed the opt-out form in 2003 which the school had permitted employees to do. Plaintiff argued that he validly executed the opt-out form in May 2003 and continued working for the school through March 2005. For each new semester the school provided plaintiff with an offer letter with various addendums. The last offer letter accepted by plaintiff was dated March 8, 2005 and stated in part: This offer of employment is also contingent upon signature of the companys Dispute Resolution Program Agreement for New Employees. Plaintiff argued he was not bound by the arbitration agreement because: he had executed the opt-out form in May 2003; he had been employed since January 2003; and he did not execute the March 2005 arbitration agreement. According to plaintiff, the March 2005 arbitration agreement was ambiguous as to whether he was a new employee. The March 2005 arbitration agreement was even more ambiguous when it was read with the 2003 acknowledgement and opt-out forms. Plaintiff argued none of these documents stated that the opt-out forms only applied to the scholastic term in which it was executed. Plaintiff further noted that the offer letter provided that employees were eligible to participate in a matching dollars 401k savings plan after 12 months of continuous service. However, if employees who had worked previous scholastic terms were new employees, they would never be eligible for the savings plan benefit. The savings plan would never be available under these circumstances because there would be a gap in continued employment between the end and start of each scholastic term.

In reply, defendants argued that, as a condition of his employment, plaintiff agreed to arbitrate the dispute. The arbitration agreement was enforceable under the federal and state arbitration acts. Defendants also argued: since the August 2003 scholastic term, plaintiff as a term of employment was required to participate in the Dispute Resolution Program; the March 2005 contract did not incorporate the 2003 opt-out form; under Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444, 451-452 and other authorities, the power to interpret the arbitration agreement falls within the purview of the arbitrator; plaintiff is requesting an interpretation of the contract which is a question for the arbitrator; the arbitration agreement clearly and unequivocally requires that any dispute relating to employment be submitted to arbitration; and the 401k savings plan policy is irrelevant to whether plaintiff is bound to arbitrate the dispute as a condition of his employment. Defendants further argued that plaintiff did not contend that the terms of the arbitration agreement are uncertain or ambiguous. Rather, plaintiff only cited to the purported ambiguity of the terms of the March 8, 2005 employment offer and the language in the May 2003 opt-out provision.

On April 10, 2006, the trial court denied the petition to compel arbitration. In denying the petition, the trial court stated: The existence of a written agreement to arbitrate is necessary for the court to order the parties to arbitrate. . . .  Here, there is no agreement that plaintiff signed. While their School asserts that it had a policy in place whereby its employees had to submit the disputes with the School to arbitration before JAMS, the School did not submit evidence of a written agreement signed by plaintiff. To be specific, the School did not provide a Dispute Resolution Program Agreement for Current Employees, a copy of [which] is attached to the Young declaration, signed by plaintiff. []  The School alternatively argues that plaintiff was reemployed each semester and therefore became subject to the arbitration provision because it was referred to in the Employees Acknowledgement of Receipt of Dispute Resolution Program Package. This form, signed by plaintiff on [June 4, 2003], is attached to the Young declaration. However, an opt out form, signed by plaintiff on [June 6, 2003], is also attached to the Young declaration. []  The Schools argument is that as employments are renewed each semester, plaintiffs opt out expired at the end of the summer 2003 semester. The School argues for all future semesters plaintiff was a new employee and the Schools Dispute Resolution Program Package form became a condition of employment. There is evidence, however, that instructor employment was continuing. The Schools 401k savings plan, for instance, is inconsistent with instructor reemployment each semester. []  In summary, an agreement to arbitrate is based on a showing that each party consented thereto. The School does not have evidence that plaintiff consented to arbitration. This timely appeal followed.

III. Discussion

A. The Standard of Review

The parties initially dispute the applicable standard of review for determining whether the trial court properly denied defendants petition to compel arbitration. Plaintiff argues that a substantial evidence standard should be applied because: a dispute existed as to the terms of the March 8, 2005 letter; a dispute existed as to whether plaintiff was a new employee at the end of every semester; and extrinsic evidence was submitted regarding the Dispute Resolution Program for current employees of 2003. Defendants counter a petition to compel arbitration is always governed by a de novo standard of review and there is no factual dispute.

The Court of Appeal held: There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. (NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 71-72.) If the [trial] courts order is based on a decision of fact, then [the reviewing court] adopt[s] a substantial evidence standard. (See e. g. Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416; see also Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) Alternatively, if the courts denial rests solely on a decision of law, then a de novo standard of review is employed. (See, e.g. NORCAL [Mutual Ins. Co. v. Newton], supra, [84 Cal.App.4th] at pp. 71-72; see also Metalclad Corp. v. Ventana Environmental Organization Partnership (2003) 109 Cal.App.4th 1705, 1716.) (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425; see also Mercurov.Superior Court (2002) 96 Cal.App.4th 167, 172.)

The trial court denied the petition to compel arbitration because defendants failed to produce evidence that there was a written arbitration agreement between the college and plaintiff. The ruling is based on: the undisputed facts that plaintiff did not sign an arbitration agreement; plaintiff in fact opted out of the arbitration agreement; the meaning of terms in the March 2005 offer letter; and the conclusion the March 2005 offer letter contract was ambiguous as to whether it applied to plaintiff as a new employee. This case, thus, involves issues of fact and questions of law.

B. The Validity of the Agreement to Arbitrate

The arbitration agreement provides that it is governed by the United States Arbitration Act. (9 U.S.C.  1 et seq.) Under federal law, an arbitration provision is valid, irrevocable, and enforceable except on legal or equitable grounds which properly apply to all contracts. (9 U.S.C.  2; Perry v. Thomas (1987) 482 U.S. 483, 492-493, fn. 9; Armendariz v.Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98.) The purpose and effect of the federal law is to encourage the arbitration of civil disputes outside the judicial forum. (Gilmerv.Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 25; Moses H. Cone Memorial Hosp.v.Mercury Const. Corp. (1983) 460 U.S. 1, 24.) There is a liberal policy in favor of arbitration agreements under federal and state law. (Gilmerv.Interstate/Johnson Lane Corp., supra, 500 U.S. at p. 25; Code Civ. Proc.,  1281.2; Armendarizv. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 97; Moncharshv.Heily & Blase (1992) 3 Cal.4th 1, 9.) The United States Supreme Court has indicated that under federal law: [A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay or a like defense to arbitrability. [Citation.] (Mitsubishi Motors Corp.v.Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 626; Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384.)

State law is applied to determine the validity of an arbitration agreement as long as the legal principles at issue are applicable to contracts generally. (Doctors Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687; see also Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 153, 163-168; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-973; Kinney v. United Healthcare Services, Inc. (1999) 70 Cal.App.4th 1322, 1328.) Thus, the question of whether a valid agreement to arbitrate exists is determined by reference to state law applicable to contracts generally. (Perryv.Thomas, supra, 482 U.S. at p. 492; Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 638-639.) Stated another way, whether a valid contract to arbitrate exists is a question to be resolved by state law principles concerning the formation, interpretation, and enforceability of contracts. (Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 906; Chan v. Drexel Burnham Lambert, Inc., supra, 178 Cal.App.3d at pp. 638-639.)

As an initial matter, citing Green Tree Financial Corp. v. Bazzle, supra, 539 U.S. at pages 451-453, defendants claim that the trial court exceeded its power by even interpreting the arbitration agreement. Defendants contend that the issue of whether the opt-out provision was included in the March 2005 employment agreement was for the arbitrator and not the court to decide. However, as defendants concede in their opening brief, the trial court determines whether a valid contract existed before ordering arbitration. Under federal and state law, the threshold question of the existence of a valid agreement to arbitrate is one for the court and not the arbitrator. (See Discover Bank v. Superior Court, supra, 36 Cal.4th at p. 171; SandvikAB v. Advent Intern. Corp. (3rd Cir. 2000) 220 F.3d 99, 111.) Indeed, the existence of an agreement to arbitrate is a statutory prerequisite to granting a petition to compel arbitration. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414; Marcus v. Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 88-89.)

Code of Civil Procedure section 1281 provides for enforcement of arbitration by the courts as follows, A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. The trial court has authority to compel arbitration pursuant to Code of Civil Procedure section 1281.2 which provides in 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 thereto refuses to arbitrate such 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: . . . [] (a) The right to compel arbitration has been waived by the petitioner; or [] (b) Grounds exist for the revocation of the agreement. A petition to compel arbitration is a suit in equity to compel specific performance of a contract. (Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 411; Spear v. California State Auto. Assn. (1992) 2 Cal.4th 1035, 1040.) Defendants had the burden of proving by a preponderance of the evidence the existence of a valid arbitration agreement between the parties. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972; Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th at p. 1413; Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1164.)

As noted above, the trial court ruled no valid agreement to arbitrate existed in part because plaintiff never consented to arbitration. Mutual consent or assent is an essential element of any contract. (Civ. Code,  1550, 1566, 1580; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.) According to our Supreme Court: An essential element of any contract is consent. [Citations.] The consent must be mutual. [Citations.] Consent is not mutual, unless the parties all agree upon the same thing in the same sense. [Citations.] [] The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe. [Citation.] Outward manifestations thus govern the finding of mutual consent required . . . for contract formation. [Citation.] The parties outward manifestations must show that the parties all agreed upon the same thing in the same sense. (Civ. Code, 1580.) 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. (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 202 quoting from Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811.) When the parties dispute the existence of a contract and the evidence is conflicting, it is a factual question as to whether the contract actually existed. (Fair v. Bakhtiari, supra, 40 Cal.4th at p. 202; Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208; Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407.) Likewise, the issue of whether a valid arbitration agreement existed because there was a lack of mutual consent required factual determinations, and, thus, presented a question of fact. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1269; Alexander v. Codemasters Group Limited, supra, 104 Cal.App.4th at p. 141; Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-357; Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1527, fn. 2.) The trial courts finding that there is no valid agreement to arbitrate must be affirmed if it is supported by substantial evidence. (Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th at pp. 356-357; Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1527, fn. 2.)

Here, the trial court found defendant had not established that plaintiff consented to arbitration. Defendants presented no evidence that plaintiff ever signed an agreement to arbitrate the controversy. There was evidence that on May 1, 2003, the college implemented a Dispute Resolution Program. But, there was also evidence that some employees, such as plaintiffs, were given the opportunity to opt-out of the program. Plaintiff was given information of the opt-out provision. Plaintiff was allowed to opt-out of the program. In fact, according to plaintiff, in May he signed an opt-out form. Critical items of evidence in this case establish that plaintiff has never executed an arbitration provision but did sign a document opting out of participating in the colleges Dispute Resolution Program. Substantial evidence, thus, supports the conclusion that no agreement to arbitrate the controversy ever existed.

C. Defendants Claims of Consent

Defendants nevertheless claim the trial courts ruling must be reversed because plaintiff agreed to the Dispute Resolution Program when he accepted employment for the March 2005 term. Citing Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th at pages 420-422, defendants argue that plaintiffs signature was not required and his consent to arbitration can be implied-in-fact by his acceptance of employment for the March 2005 term. Defendants argument is premised on evidence that: the colleges dispute resolution policy changed sometime after plaintiff signed the opt-out form in June 2003; the 2003 teaching semester in which plaintiff was employed ended; and the March 8, 2005 offer letter stated as a condition of employment new employees would be bound by the Dispute Resolution Program. As previously stated the March 8, 2005 offer letter provided, This offer of employment is also contingent upon signature of the companys Dispute Resolution Program Agreement for New Employees.

We reject defendants contentions. No doubt Craig v. Brown & Root, Inc., supra, 84 Cal.App.4th 416 concluded that an employee could be found to have impliedly accepted an agreement to arbitrate by continuing to work under terms proposed by the employer. (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 18; see 1 Witkin, Summary of Cal.Law (10th ed. 2005) 210, pp. 243-244.) However, Craig is factually distinguishable from the case at bench. Here, unlike in Craig, there is an opt-out form that was executed by plaintiff when the Dispute Resolution Program was first introduced. Moreover, in Craig, there was no issue of an arbitration provision stating that it applied to new employees. There is no evidence that plaintiff in this case executed the addendum to the March 8, 2005 offer letter, which referenced the arbitration provision for new employees. The only evidence submitted by defendants is that plaintiff opted-out of the Dispute Resolution Program. Furthermore, there was evidence that plaintiff was not a new employee but had been employed by the school for at least eight terms over a two-year period. Thus, the issue of whether plaintiffs conduct in continuing to work after receiving the March 8, 2005 offer letter was not resolved as a matter of law but as a factual one by the trial court. Craig is not controlling.

Moreover, any ambiguity in the contract language must be construed against the drafterthe college. (Civ. Code, 1654^[1]; Taylor v. J.B. Hill Co. (1948) 31 Cal.2d 373, 374.) Thus, when construed in that manner, the term new employee would not apply to somebody like plaintiff who had worked for the college for nearly two years when he signed the March 8, 2005 offer letter. On this ground alone, defendants ambiguity based contentions have no merit.

Further, there is no merit to defendants assertion that Mr. Youngs declaration established, as matter of law, that plaintiff was a new employee who could not secure the benefit of the June 6, 2003 opt out decision. Defendants are relying on extrinsic evidence, Mr. Youngs declaration, to address the alleged ambiguity in the agreements as to who is a new employee. We review the trial courts resolution of an issue of an ambiguity where there is conflicting evidence utilizing the deferential substantial evidence standard of review. (ASP Properties Group, L.P. v. Fard, Inc., supra, 133 Cal.App.4th at p. 1267; Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 625.) There is substantial evidence plaintiff was not a new employee. Plaintiff had worked for the college for two years. As the trial court found, the colleges 401k savings plan benefit which was available to college employees who had been employed for 90 days was inconsistent with the notion espoused by Mr. Young that plaintiff was a new employee. There are no documents that define a new employee as Mr. Young defines the term. Further, the attached addendum referred to in the March 8, 2005 letter was not provided. The trial court was entitled to draw adverse inferences to defendant in

light of the failure to provide the entire March 8, 2005 contract. The arbitration provision was part of the colleges Open Door Policy. The frequently asked questions page on the college web site indicates the dispute resolution policy already existed and it was simply being restated. According to the colleges website, the Dispute Resolution Program went into effect March 1, 2003. Plaintiff stated he executed the opt out document in May 2003. Nothing on the website states a previously executed opt out form was invalid. The foregoing documentary evidence contradicts Mr. Youngs assertion that plaintiff was a new employee who could not secure the benefit of the opt out document. Substantial evidence supports the trial courts implied finding that an ambiguity was present which was conclusively resolved against defendants. Defendants claim to the contrary based on Mr. Youngs declaration is without merit.

Finally, there is no merit to defendants contention that plaintiffs March 8, 2005 acceptance of the employment offer obligated him to arbitrate. Defendants rely on the following language in the March 8, 2005 agreement, This offer of employment is also contingent upon signature of the companys Dispute Resolution Program Agreement for New Employees. The details of this program along with the Dispute Resolution Agreement are attached to this letter. . . . [] If you accept the terms of this offer, please sign below . . . . Thus, when plaintiff agreed to participate in the Dispute Resolution Program, he was participating in a system that had explicitly included the option of not participating in arbitration. More importantly, plaintiff executed a document indicating he understood he was automatically subject to the Dispute Resolution Program unless he exercised the option to not participate. Plaintiff stated he opted out of the program as he was entitled to do so in May 2003.

To sum up, plaintiff never executed a written agreement to arbitrate; an essential element of an enforceable duty to arbitrate under the United States Arbitration Agreement. Most of the pertinent documents concerning the terms of plaintiffs employment and the duty to arbitrate were never produced. Any ambiguity in the limited documents that were produced must be construed against defendants. The trial court was entitled to reject Mr. Youngs parol evidence. Substantial evidence supports the trial courts ruling.

IV. Disposition

The order denying the petition to compel arbitration is affirmed. Plaintiff, James Holland, is awarded his costs on appeal from defendants, Trav Corporation doing business as Westwood College and Marshall Vallelunga.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

MOSK, J.

KRIEGLER, J.

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^[1] Civil Code section 1654 states, In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.