Filed 10/3/18 Martinez v. Anaheim Point Healthcare & Wellness Centre, L.P. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Reversed and remanded.

De Castro Law Group, Jose-Manuel A. de Castro and Lori V. Minassian, for Defendant and Appellant.

Serendib Law Firm, Dimuth C. Amaratunge and Maya L. Serkova for Plaintiff and Respondent.

* * *

Anaheim Point Healthcare & Wellness Centre, L.P. (Anaheim Point) appeals from the trial court’s denial of its motion to compel Maria Martinez to arbitrate her employment claims. Martinez opposed the motion to arbitrate on the grounds she did not speak or read English, the arbitration agreement was given to her buried among other documents, Anaheim Point did not explain the agreement to her, and failed to provide a Spanish version of the agreement. Martinez also argued the agreement was procedurally and substantively unconscionable, and Anaheim Point was not a signatory to the agreement. The court found there was “no meeting of the minds” because Martinez could not read what she was signing and therefore she was unaware she had agreed to arbitration. We reverse the order denying the motion to compel arbitration and remand for the court to determine whether it would be unconscionable to enforce the arbitration provision.

I

Facts and Procedural Background

In July 2016, Martinez filed a complaint against defendants Anaheim Point and Windsor Gardens of Anaheim,[1] where she had worked as a certified nursing assistant since January 2011. Martinez alleged Anaheim Point failed to provide meal and rest breaks in violation of the Labor Code, disability discrimination, constructive wrongful termination, and unfair business practices.

In December 2016, Anaheim Point moved to compel arbitration, claiming Martinez had entered into an agreement to arbitrate all disputes arising from her employment.

According to Anaheim Point’s motion, Windsor Gardens operated a residential skilled nursing and convalescent facility in Anaheim until August 2014, when it transferred operation to Anaheim Point. Martinez worked at the facility continuously from January 2011 to November 2015, first as an employee of Windsor Gardens, and then in 2014 as Anaheim Point’s employee.

On January 20, 2011, Martinez signed and initialed an employment application agreeing if hired she would submit any claims arising out of her employment to arbitration. She was hired, and on January 25, 2011, signed a document captioned “Agreement to be Bound by Alternative Dispute Resolution Policy.” In September 2011, Martinez signed another document entitled “Agreement to be Bound by Alternative Dispute Resolution Policy.”

Under the September 2011 arbitration agreement, Martinez agreed to submit to final and binding arbitration any and all “disputes relating to [her] employment.” She “expressly acknowledged her agreement to arbitrate covered (a) claims arising from alleged violations of state, federal and/or local constitutions, statutes, or regulations, (b) claims of unlawful harassment or discrimination, (c) claims based on any purported breach of contractual obligations, and (d) claims based on any purported breach of duty arising in tort, including violations of public policy.”

Windsor Gardens representatives executed the arbitration agreement, agreed to be bound by the alternative dispute resolution program, and to pay arbitration fees. The ADR Policy “(a) provides for the appointment of a neutral arbitrator by agreement of the parties or by the American Arbitration Association, (b) affords the arbitrator ‘the same authority to award remedies and damages on the merits of the dispute as would be provided to judge and/or jury under parallel circumstances, (c) affords the parties all discovery rights they would have under California law, (d) requires the arbitrator to issue a written award, and (e) requires [Anaheim Point] to pay all fees and costs unique to the arbitration.’”

Martinez opposed the motion to arbitrate. She submitted a declaration in Spanish, which was translated, stating she “never understood any arbitration agreement allegedly given to me by [the] Defendant, [n]either [has the] Defendant . . . ever explained to me [the things that] these arbitration agreements mean and the legal consequences of signing them. I never saw, read or signed any arbitration agreement provided by the Defendant in Spanish. [¶] [] I do not speak or read English. I can barely read in my own native language which is Spanish. [¶] [] None of the arbitration agreements were given to me as [independent] separate stand-alone documents. It appears that these arbitration agreements were given to me, buried among other documents, for my signature. [¶] [] Neither Defendant nor [the human resources manager Hanita Hofman] ever explained the contents of these agreements in Spanish nor provided me with a copy of the agreements in Spanish.”

Martinez argued the arbitration agreements were “invalid” because there was no “‘meeting of the minds’” between the parties. She asserted the purported agreements were “a stack of papers that Defendant surreptitiously had Martinez sign along with a series of other documents during her employment, and without giving [her] a copy to keep for her own records.” Martinez claimed she was not given an opportunity to read the agreement and could not be “bound by contract terms of which [she was] unaware,” explaining she was a “monolingual Spanish speaker” and did not understand that she was waiving her rights to go to court.

Martinez also argued the agreement was unconscionable under California law (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz); Civ. Code, § 1670.5, subd. (a)), and Anaheim Point was not entitled to enforce the agreement because it was not a signatory to the arbitration agreement.

Anaheim Point replied if Martinez “did not understand the arbitration agreements that were presented to her, it was incumbent on her to request a translation or explanation, or refuse to sign. Having failed to do so, [she] is bound by her objective manifestation of her assent . . . .” Anaheim Point argued against Martinez’s claims of unconscionability, and that it was not entitled to enforce the provision because it was a nonsignatory.

The trial court denied the motion after oral argument. The court’s minute order provides: “Plaintiff’s declaration establishes that there was no meeting of the minds as she could not read what she was signing and was unaware of what it was; Deny.”

II

Discussion

A. Mutual Assent

Anaheim Point contends the trial court erred in believing Martinez’s declaration she could not speak or read English and never understood she was agreeing to arbitration of any dispute with her employer. Anaheim Point also asserts Martinez’s signature on three separate arbitration agreements objectively demonstrated her assent to those provisions. We agree the latter argument requires reversal.

Our standard of review depends on whether the trial court based its decision on a question of fact or a question of law. “‘If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed. [Citations.]’” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60.)

Here, the trial court implicitly found Martinez’s declaration credible when it denied Anaheim Point’s motion to compel arbitration. Anaheim Point complains Martinez’s declaration “was not facially credible – and thus does not constitute substantial evidence.” We disagree. In essence, Anaheim Point invites us to evaluate Martinez’s credibility, but appellate courts “do not reweigh or reassess the credibility of witnesses. [Citation.] We are ‘not a second trier of fact.’” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1246.) The court found Martinez’s declaration credible, and we see no basis to second-guess that decision. We therefore accept the court’s factual finding and view Martinez’s declaration as substantial evidence supporting the court’s finding Martinez could not read or speak English. We must next consider the legal significance of the court’s finding.

The right to arbitration depends on the existence of a valid contract. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 172 (Serafin).) Courts may compel a party to arbitrate a dispute only when the party has agreed in writing to do so. (Marsch v. Williams (1994) 23 Cal.App.4th 250, 255.) The party seeking arbitration bears the initial burden of proving the existence of an arbitration agreement by a preponderance of the evidence. Once the moving party has satisfied its burden, the party opposing arbitration bears the burden to show why the agreement should not be enforced. (Serafin, supra, 235 Cal.App.4th at pp. 172-173.)

Here, Anaheim Point met this burden when it introduced copies of three separate arbitration agreements signed by both parties. Martinez does not dispute that she did, in fact, sign the arbitration agreement, but instead contends there was no “mutual assent” because she could not read or speak English and therefore did not understand she was waiving her right to a jury trial. Martinez explains she “was not aware what she was signing because the arbitration agreements were given to her in a stack of papers and they were in English while Appellant was well aware that [Martinez] does not speak English let alone read it.”

In California, “[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420.) “An essential element of any contract is the consent of the parties, or mutual assent.” (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270. Further, the consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) “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.) “A party's acceptance of an agreement to arbitrate may be express, as where a party signs the agreement.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “‘[O]ne who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.’” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 (Randas).)

Here, Martinez’s outward manifestations—the signing of the arbitration clause—demonstrated mutual assent and an intent to enter into an agreement. Her signature on three separate documents agreeing to arbitration supports the conclusion she assented to the agreement. Absent any mitigating details, Martinez’s signature was a clear, objective demonstration of her assent to the agreements.

Absent fraud or overreaching, Martinez’s inability to read and speak English does not alter the conclusion her signature on the contract manifested her agreement to its terms. Generally, a party may not avoid enforcement of an arbitration provision because the party has limited proficiency in the English language. “If [a party] did not speak or understand English sufficiently to comprehend the English Contract, he should have had it read or explained to him.” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 687 (Ramos); Randas, supra, 17 Cal.App.4th at p. 163 [swimming class release form in English valid even though the signatory only could read Greek]; Fields v. Blue Shield of California (1985) 163 Cal.App.3d 570, 578 [“It is a general rule a party is bound by contract provisions and cannot complain of unfamiliarity of the language of a contract”].)

An exception to the general rule applies when a party was fraudulently induced to sign the contract. (Ramos, supra, 242 Cal.App.4th at p. 688 [contract void for fraud in the execution when party deceived as to nature of document]; Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 702 [dispute resolution form failed to warn employee he was agreeing to binding arbitration].) The exception does not apply here because Martinez does not contend Anaheim Point defrauded her or prevented her from learning the contract’s terms. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 431 [“failure to take measures to learn the contents of the document [the parties] signed is attributable to their own negligence”].)

Martinez objectively demonstrated her assent to the contract terms when she signed these agreements. There is no evidence showing Martinez asked Anaheim Point for assistance in understanding these agreements, nor is there evidence Anaheim Point deceived her into signing the documents or prevented her from gaining an understanding of them. The evidence shows she signed these documents, which objectively shows her assent to the terms of these agreements. Absent evidence of fraud in the execution of these agreements, we must reverse the trial court’s decision that the agreement lacked mutual assent.

B. Unconscionability

Martinez contends Anaheim Point’s arbitration agreements are procedurally and substantively unconscionable, explaining the arbitration provisions were buried among other documents and Anaheim Point failed to explain Martinez would be giving up her right to a jury trial.

The moving party must establish both procedural and substantive unconscionability under the doctrine of unconscionability, though both do not have to be present in the same degree. (Armendariz, supra, 24 Cal.4th at p. 114.) Employers who know that employees speak another language, but have them sign paperwork in English without explanations or translations in the employees’ language create an unfair “surprise” under the procedural unconscionability prong. (See Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85; see also Penilla v. Westmont Corp. (2016) 3 Cal.App.5th 205, 216.) This is only one component of an unconscionability analysis, however. Here, the parties disagree about certain factual questions that affect the unconscionability determination—such as whether the arbitration provisions were given as stand-alone documents or within a pile of papers. This is a major factual dispute regarding procedural unconscionability and “surprise” that the trial court did not resolve. Instead, the trial court merely observed that Anaheim Point “probably” gave the arbitration provisions in a stack of papers.

In denying the motion to compel arbitration, the trial court never reached the unconscionability issue. We therefore decline to decide the issue, and we remand the matter for the trial court to decide whether the arbitration clause was unconsionable.

C. Civil Code Section 1632 and Labor Code Section 2810.5 (a)(1)

Martinez’s arguments regarding Civil Code section 1632 and Labor Code section 2810.5, subdivision (a)(1), misunderstand the law and are not applicable here. As Martinez quotes, Civil Code section 1632, subdivision (b), states that the “person engaged in a trade or business who negotiates primarily” in a particular language must deliver to the other involved party a translation in that language. Even more clearly, Labor Code section 2810.5, subdivision (a)(1), states that “an employer shall provide to each employee a written notice, in the language the employer normally uses to communicate employment-related information . . . .” (Italics added.) These passages are referring to the language that the employer, not the employee, normally utilizes, and there is no evidence presented that Anaheim Point usually spoke Spanish in the course of its business.

II

Disposition

The March 22, 2017, order denying Anaheim Point’s motion to compel arbitration is reversed. The cause is remanded for a determination whether the arbitration clause was unconscionable. Each party to bear their own costs on appeal.

ARONSON, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.