Filed 1/9/18 Olivares v. Fountain Valley Regional Hospital and Medical Center CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


EDA SANCHEZ OLIVARES,

Plaintiff and Respondent,

v.

FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER et al.,

Defendants and Appellants.


G053514

(Super. Ct. No. 30-2015-00823733)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Affirmed.
Littler Mendelson, Elizabeth Staggs-Wilson, Keith A. Jacoby, Henry D. Lederman and Anthony G. Ly for Defendants and Appellants.
Matern Law Group, Matthew J. Matern and Matthew W. Gordon for Plaintiff and Respondent.

INTRODICTION
Tenet Healthcare Corporation (Tenet), Fountain Valley Regional Hospital and Medical Center (Fountain Valley), and Joseph Badalian (collectively, appellants) appeal from an order denying their petition to compel Eda Olivares to arbitrate her lawsuit alleging Labor Code violations. The appeal boils down to two issues. First, does an employee handbook from 2012 obligate Olivares to arbitrate her dispute? Second, if it does not, may appellants bring another petition to enforce earlier agreements they claim compel arbitration? The trial court said no to both.
We affirm the order denying the petition to compel arbitration and appellants’ oral request to try again with earlier agreements. Olivares did not agree to anything contained in the employee handbook appellants sought to enforce; at best she merely acknowledged she had received it. And we cannot find that the trial court abused its discretion in refusing to allow appellants another try. They had all the information they needed to bring a comprehensive petition; permitting serial petitions under these circumstances invites abuse.
FACTS
Olivares sued Fountain Valley and Tenet for various Labor Code violations on behalf of herself and other similarly situated employees. Appellants petitioned to compel arbitration, based on a Tenet employee handbook dated September 18, 2012.
Olivares began working at Fountain Valley in February 2006. At that time, she purportedly signed an offer letter that included an agreement to arbitrate employment disputes. She also acknowledged receipt of the 2001 employee handbook, which acknowledgement included an express agreement to arbitrate.
In 2007, Olivares purportedly signed another “employee acknowledgement,” this time of the receipt of a copy of the Tenet Healthcare Corporation Employee Handbook and Standards of Conduct. Once again, the acknowledgement included an express agreement to arbitrate “all claims and disputes.”
The Tenet Employee Handbook was updated in September 2012. The 2012 handbook was an electronic document, although employees had access to hard copies, and employees electronically signed an “Employee Handbook Receipt.” Defendants submitted a screen shot of the electronic form. It read: “Employee Handbook Receipt [¶] I acknowledge that I have accessed and reviewed an electronic copy of the September 2012 Handbook. I have also received information about how to access an electronic copy of the September 2012 Handbook via the Company’s intranet. I understand that I may print all or parts of the Handbook for my use and I may also receive a hardcopy of the Handbook from Human Resources. [¶] I further understand that the Handbook contains important information about the Company’s general personnel policies and about my privileges and obligations as an employee. I understand it continues to set forth terms and conditions of my employment unless modified by an applicable collective bargaining agreement. [¶] [_] I Agree By clicking I Agree, you indicate your acceptance of the statement above. [¶] Employee Name: [box to type name with words “Enter Your Name”] Date [box to enter date] [¶] “Submit” [click button] [¶] Electronic handbook – [link to electronic handbook] [¶] The AAA’s Employment Arbitration Rules can be found at www.adr.org or click here.” Defendants submitted evidence that Olivares clicked the “Submit” button on November 12, 2012.
The 2012 Handbook included several references to arbitration. The table of contents referred to “Final and Binding Arbitration” as one step in the dispute resolution process. The table also had a heading for “The Arbitration Process.” The next page referred to the employment-at-will policy and the mutual agreement to arbitrate as being fixed, unlike other policies that management had the discretion to change.
Appellants’ notice of motion asserted that Olivares had entered into “a valid and enforceable agreement requiring arbitration of her individual claims” without specifying the agreement. In the memorandum of points and authorities, appellants relied solely on the provisions of the 2012 handbook as the basis for the agreement to arbitrate. They referred to the 2006 and 2007 agreements in a footnote, asserting that if the trial court found the 2012 handbook unenforceable, the earlier agreements still required Olivares to arbitrate.
Olivares submitted no evidence in opposition to the motion to compel arbitration. She did not contest the facts as stated in the moving papers.
The court denied appellants’ petition to compel arbitration on the ground they had failed to present evidence of a valid written agreement to arbitrate. When appellants intimated they wanted to bring another petition based on the earlier agreements, the court said it would not entertain another petition and denied the one before it with prejudice.
DISCUSSION
Appellants identified seven issues on appeal. Three of them dealt with the effectiveness of the 2012 handbook in establishing an agreement to arbitrate. Three of them dealt with the effect of the 2006 and 2007 agreements in the event the 2012 handbook did not do the job. The final issue was whether the court erred in not allowing appellants to try again.
In the absence of a factual dispute, we review an issue of contract formation de novo. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208.) Even if the Federal Arbitration Act governs an arbitration agreement, “state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally.” (Perry v. Thomas (1987) 482 U.S. 483, 492, fn. 9.)
The party seeking arbitration bears the burden of establishing the existence of a valid agreement. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) A party cannot be required to submit to arbitration unless he has agreed to do so. (AT&T Technologies v. Communications Workers of America (1986) 475 U.S. 643, 648-649.)
I. 2012 Handbook
The second paragraph of the “About Your Handbook” section (the first section after the table of contents) admonishes the employee to “[p]lease remember that this Handbook is not a contract of employment, that your employment with the facility at all time is as-will, and that either you or the facility can terminate the employment relationship at any time, with our without cause or notice.” The reminder that the handbook is not a contract of employment is repeated several times.
The Dispute Resolution Process, the final step of which is binding arbitration, is listed in the table of contents as beginning on page 50. It has the alternate name of the Fair Treatment Process. Inexplicably, the part of the handbook containing contract language comparable to the language in the earlier documents is separated from the descriptive Fair Treatment Process portion by 15 mind-numbing pages of discussion of federal and state false claims acts. An employee who has soldiered through this discussion is once again admonished that the “Employee Handbook is not a contract of employment.” The “acknowledgement” portion of the handbook is not listed in the table of contents. There is no provision at this point in the handbook for an employee signature.
We agree with appellants that an arbitration provision does not necessarily have to be highlighted or specifically pointed out in order to be enforceable. (See Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 914.) The document the employee signs, however, must be contractual in nature. (See, e.g., Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 790; Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1522-1523, abrogated on other grounds in Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373; Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1173 [“Conspicuously absent from the acknowledgement receipt form is any reference to an agreement by the employee to abide by the employee handbook’s arbitration agreement provision.”])
The Employee Handbook Receipt, which appellants refer to as the “acknowledgement,” does not contain language obliging Olivares to arbitrate. When she clicked on “I Agree,” she was agreeing, among other things, that she had received a copy of the handbook and information about how to get an electronic version, that she understood the handbook contained important information about policies, privileges, and obligations, and that she understood it set forth the terms and conditions of her employment. Nowhere, however, is there language along the lines of “I agree to be bound by the terms and conditions of my employment” or “I agree to all the obligations set forth in the handbook.” All she agreed to, according to the receipt, was that she accepted “the statement above,” i.e., that she had received a copy of the handbook and so on. Calling this document a “receipt” further obscured any possible contractual nature or intent. There is no explicit incorporation by reference, only links to the electronic version of the handbook and the AAA employment arbitration rules.
The language of the receipt contrasts sharply with the language of the prior agreements appellants claimed Olivares had signed. The 2006 offer letter stated, “[Y]ou agree that any and all disputes regarding your employment with the hospital . . . are subject to the Tenet Fair Treatment Process, which includes final and binding arbitration.” The 2006 handbook acknowledgement stated, “I hereby voluntarily agree to use the Company’s Fair Treatment Process and to submit to final and binding arbitration any and all claims and disputes that are related in any way to my employment or the termination of my employment with Tenet.” The 2007 employee acknowledgement stated, “I hereby voluntarily agree to use the Company’s Fair Treatment Process and to submit to final and binding arbitration any and all claims and disputes except “Excluded Issues” that are related in any way to my employment or the termination of my employment with Tenet.” In each case, Olivares’ signature appears directly below these provisions.
The receipt contains no comparable language. It stated only that Olivares “understands” that the new handbook contains important information and “understands” that it sets forth terms and conditions of employment. When she “agreed” to “accept” “the statement above,” she was agreeing only that she understood this characterization of the handbook. The receipt nowhere required her to agree to be bound.
II. Prior Agreements
Earlier in her career at Fountain Valley, Olivares purportedly signed three other agreements pertaining to arbitration. As discussed above, unlike the 2012 Employment Handbook Receipt, these documents have the virtue of employing contract language, such as “you agree” and “I hereby voluntarily agree,” in connection with arbitration. As their fallback position, appellants assert that if the 2012 handbook is not effective, then either the 2007 or the 2006 agreements are.
The trial court would not consider enforcing these agreements because the reference to them was supplied in a footnote, rather than in the body of the petition. The court concluded that appellants were not actually relying on these earlier agreements, but rather intended to stand or fall on the 2012 handbook. When appellants asked for permission to bring another petition based on the earlier agreements, the court refused to grant it.
We agree with the trial court that appellants failed to petition for enforcement of the earlier arbitration agreements. The furtive reference to them in a footnote – while the body of the argument section promoted the 2012 handbook exclusively – looks too much like sandbagging to suit us. At the very least, it deprived Olivares of adequate notice about the basis of the petition so that she could respond comprehensively to it.
The question before us is what to do about this situation. Do we allow appellants a do-over, or do we affirm the trial court’s decision that they had put all their cards on the table at once and could not keep a couple of aces up their sleeves?
We believe the court was within its discretion to refuse to allow appellants a do-over. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [court’s inherent power to control proceedings to insure orderly administration of justice].) A rule permitting serial petitions to compel arbitration under these circumstances is simply a recipe for abuse.
We do not here deal with the situation where a party renews a petition to compel arbitration in the trial court under Code of Civil Procedure section 1008 subdivision (b). (See, e.g., Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 769 [renewed motion following change in law].) These motions are decided by applying the usual criteria, for example, whether there are new facts or a change in the law. In this case, however, appellants could not have renewed their petition under this code section because there were no new facts or law. They knew all about the earlier agreements, but they deliberately decided not to rely on them. They are therefore left with the consequences of their decision.
Because the court did not rule on unconscionability, and our decision upholding its ruling is based on the failure to show a valid agreement, we have no occasion to address this issue.
DISPOSITION
The order denying appellants’ petition to compel arbitration is affirmed. Respondent is to recover her costs on appeal.




BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.