Filed 4/10/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION SEVEN


ERIKA DIAZ,                         B283077

      Plaintiff and Respondent,     (Los Angeles County
                                    Super. Ct. No. BC644622)
       v.

SOHNEN ENTERPRISES et al.,

       Defendants and Appellants.


      APPEAL from an order of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Reversed with
directions.
      Wolflick & Simpson, Gregory D. Wolfick, David B. Simpson
and Theodore S. Khachaturian for Defendants and Appellants.
      Bruce Loren Karey for Plaintiff and Respondent.



                   __________________________
      Sohnen Enterprises appeals from the denial of its motion to
compel arbitration of claims brought by its employee, Erika Diaz.
The record before this court demonstrates there was no evidence
to support the denial; accordingly, we reverse with directions.

      FACTUAL AND PROCEDURAL BACKGROUND
      Erika Diaz, an employee of Sohnen Enterprises, filed a
complaint alleging workplace discrimination on December 22,
2016. Twenty days earlier, on December 2, 2016, she and her co-
workers received notice at an in-person meeting that the
company was adopting a new dispute resolution policy requiring
arbitration of all claims. At that meeting, according to the
declaration of Marla Carr, the Chief Operating Officer of Sohnen,
Carr informed all employees present, including Diaz, about the
new dispute resolution agreement. She included in her
explanation that continued employment by an employee who
refused to sign the agreement would itself constitute acceptance
of the dispute resolution agreement. According to Carr, she
provided the explanation in English and Elaina Diaz, a human
resources employee, explained the terms in Spanish. Diaz
confirmed this in her own declaration, in which she stated that
she discussed the terms in Spanish; she did not provide further
details about the December 2 meeting. All employees received a
copy of the agreement to review at home.
      On December 19, 2016, representatives of the company met
privately with Diaz, who had indicated to Elaina Diaz on
December 14 that she did not wish to sign the agreement. Carr




                                 2
and Diaz advised her again, in Spanish and English, that
continuing to work constituted acceptance of the agreement.
      On December 23, 2016, Diaz and her lawyer presented to
Sohnen a letter dated December 20, 2016 rejecting the agreement
but indicating that Diaz intended to continue her employment.
On the same date, Diaz also served the complaint in this action.
      On January 17, 2017, Sohnen sent a demand for arbitration
to Diaz’s counsel, based on the fact of Diaz’s continued
employment at the company. Counsel for Diaz did not reply.
Sohnen filed its motion to compel arbitration in April. Diaz filed
opposition in May. The trial court heard argument, and denied
the motion.
      The trial court, in its oral ruling, held that the agreement
was a “take-it or leave-it contract and (sic) adhesion. There is no
meeting of the minds.” The court made no factual findings, nor
did it address whether the agreement was substantively
unconscionable.
                       DISCUSSION
      A. We Review The Ruling De Novo
      The facts in the record are undisputed.1 Accordingly, our
review is de novo. (Rosenthal v. Great Western Fin. Securities
Corp. (1996) 14 Cal.4th 394, 413; Flores v. Nature’s Best

1      Respondent Diaz argues that she was off-work, due to
illness, between December 17 and December 23, 2016. The
record, however, contains no evidence to support that assertion;
Diaz filed no declaration in opposition to the motion to compel,
nor did any of the declarations filed present facts supporting the
argument of counsel. We review based on the factual record
before the trial court.




                                 3
Distribution, LLC (2016) 7 Cal.App.5th 1, 9; Esparza v. Sand &
Sea, Inc. (2016) 2 Cal.App.5th 781, 787.)

      B. The Record Demonstrates Consent to Arbitration
      When presented with a petition to compel arbitration, the
initial issue before the court is whether an agreement has been
formed. (American Express Co. v. Italian Colors Restaurant
(2013) 570 U.S. 228, 233 [133 S.Ct.2304, 2306, 186 L.Ed.2d 417]
[arbitration is a matter of contract]; 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 any dispute which he has not agreed to so submit”’”’].)
      It is the party seeking to compel arbitration which bears
the burden of proving the existence of the agreement. (Rosenthal,
supra, 14 Cal.4th at p. 413.) In this case, Sohnen presented to
the trial court evidence of the manner in which the agreement
was presented to Diaz, and the actions which followed. This
undisputed evidence was sufficient to meet Sohnen’s burden.
      California law in this area is settled: when an employee
continues his or her employment after notification that an
agreement to arbitration is a condition of continued employment,
that employee has impliedly consented to the arbitration
agreement. (Pinnacle, supra, 55 Cal.4th at 236; Harris v. TAP
Worldwide, LLC (2016) 248 Cal.App.4th 373, 383; Craig v. Brown
& Root, Inc. (2000) 84 Cal.App.4th 416, 420; cf. Asmus v. Pacific




                                 4
Bell (2000) 23 Cal.4th 1, 11 [continued employment demonstrated
implied acceptance of change in job security rules].) 2
      Diaz relies on Mitri v. Arnel Management Co. (2007) 157
Cal.App.4th 1164, and Gorlach v. Sports Club Co. (2012) 209
Cal.App.4th 1497, arguing that these cases support the trial
court’s ruling. Neither case, however, addresses the situation
presented here; accordingly, neither supports the result below.
      In Mitri, the employee acknowledged receipt of an
employee handbook containing an arbitration provision, but the
acknowledgement form did not reference or contain any
agreement to comply with the arbitration provision. (Mitri,
supra, 157 Cal.App.4th at p. 1173.) The general acknowledgment

2      The dissent relies in part on three cases, two of which apply
the law of other states, which come to a different conclusion. The
first, Scott v. Education Management Corporation (3d Cir. 2016)
662 Fed.Appx. 126 involved an arbitration agreement presented
to the employee after a federal civil rights dispute arose. The
case was decided under Pennsylvania law which, according to the
decision, requires an explicit agreement, not an implied
agreement. (Id. at p. 131) The decision, by its own terms, does
not constitute binding precedent. In the second case, Bayer v.
Neiman Marcus Holdings, Inc. (N.D.Cal. Nov. 8, 2011, No. CV 11-
3705 MEJ) 2011 WL 5416173, a court in the Northern District of
California, acknowledging that under California law an employee
could either expressly consent to a new arbitration agreement or
be bound by continuing to work after it was presented, found that
the terms of the agreement before it required a signature to be
effective. Finally, in Kunzie v. Jack-In-The-Box, Inc. (Mo.Ct.App.
2010) 330 S.W.3d 476, 486, the court held that, under Missouri
law, the assent of an employee cannot be implied where the
employee has continued to work after a change in conditions of
employment was presented.




                                 5
stands in distinction to the express explanation provided twice to
Diaz: that continued employment would itself be a manifestation
of agreement to the arbitration provisions.
      In Gorlach, the handbook provided to employees contained
an express signature requirement for the arbitration agreement:
“[T]he handbook told employees that they must sign the
arbitration agreement, implying that it was not effective until
(and unless) they did so. Because Gorlach never signed the
arbitration agreement, we cannot imply the existence of such an
agreement between the parties.” (Gorlach, supra, 209
Cal.App.4th at p. 1509.) Here, there was no such implication
because Diaz was told that her continued employment was
sufficient.
      Moreover, unlike Diaz, Gorlach left her employment to
avoid the arbitration obligation. (Gorlach, supra, 209
Cal.App.4th at p. 1508.) The uncontradicted evidence in this
record demonstrates that Diaz maintained her employment
status between December 2 and December 23, and remained an
employee at the time of the hearing in this case. As a result, she
was already bound by the arbitration agreement before the
presentation of the letter indicating both her rejection of the
agreement and her intent to remain employed. Although Diaz
now asserts that this forced Sohnen to choose whether to proceed
without arbitration, this is incorrect. At most, the letter was an
attempt to repudiate the agreement. (See, e.g. Taylor v. Johnston
(1975) 15 Cal.3d 130, 137 [express repudiation requires clear and
unequivocal refusal to perform]; Mammoth Lakes Land




                                 6
Acquisition, LLC v. Town of Mammoth Lakes (2010) 191
Cal.App.4th 435, 463 [same].)3
      In any event, because the employment agreement between
Diaz and Sohnen was at-will, Sohnen could unilaterally change
the terms of Diaz’s employment agreement, as long as it provided
Diaz notice of the change. “[I]t is settled that an employer may
unilaterally alter the terms of an employment agreement,
provided such alteration does not run afoul of the Labor Code.
[Citations.]” (Schachter v. Citigroup (2009) 47 Cal.4th 610, 619.)
“The at-will presumption authorizing an employer to discharge or
demote an employee similarly and necessarily authorizes an
employer to unilaterally alter the terms of employment, provided
that the alteration does not violate a statute or breach an implied
or express contractual agreement.” (Id. at p. 620; see also
DiGiancinto v. Ameriko-Omserv Corp. (1997) 59 Cal.App.4th 629,
636-637 [in adopting the majority view of at-will contracts, the
court stated “[T]the majority line of cases supports the
proposition that as a matter of law, an at-will employee who
continues in the employ of the employer after the employer has
given notice of changed terms or conditions of employment has
accepted the changed terms and conditions. Presumably, under
this approach, it would not be legally relevant if the employee
also had complained, objected, or expressed disagreement with
the new offer; as long as the employee continued in employment



3     Neither party has briefed the issue of repudiation, and the
potential effect of an attempted repudiation on the rights of the
parties is not before this court.




                                 7
with notice of the new terms, the employee has no action for
breach of contract as a matter of law.”].)

      C. Diaz Has Not Demonstrated That The Arbitration
         Agreement Is Unenforceable
      Once the party seeking arbitration has established that a
binding agreement was formed, as Sohnen did here, the burden
shifts to the party opposing arbitration to demonstrate the
agreement cannot be enforced. (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal, supra, 14
Cal.4th at pp. 409-410.)
      A showing that an agreement is unconscionable can bar
enforcement. The doctrine has “both a procedural and a
substantive element, the former focusing on oppression or
surprise due to unequal bargaining power, the latter on overly
harsh or one-sided results.” (Baltazar v. Forever 21, Inc. (2016)
62 Cal.4th 1237, 1243.) Both elements must be present for a
court to refuse enforcement. (Ibid.; see also Pinnacle, supra, 55
Cal.4th at p. 246 [both elements must be present, but there is a
sliding scale; if more of one element is shown, less of the other
need be present].)
      The trial court found that the contract was adhesive in
nature, but that finding, standing alone, is not sufficient. (See
Baltazar, supra, 62 Cal.4th at p. 1245 [“[t]he adhesive nature of
the employment contract requires us to be ‘particularly attuned’
to her claim of unconscionability [citation], but we do not subject
the contract to the same degree of scrutiny as ‘[c]ontracts of
adhesion that involve surprise or other sharp practices.’”].)




                                  8
      This record contains no evidence of surprise, nor of sharp
practices demonstrating substantive unconscionability. While
Diaz argues in the introduction to her briefing that the
agreement is substantively unconscionable, she fails to specify,
with appropriate citations to the record and relevant legal
authority, any terms of the agreement that she believes are
unconscionable. Accordingly, Diaz has waived any argument
that the agreement is unenforceable. (Okorie v. Los Angeles
Unified School Dist. (2017) 14 Cal.App.5th 574, 599-600 [parties
must present legal authority for all arguments made]; Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [party
raise or support issues by argument and citation to authority];
Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th
989, 1007 [parties must make coherent argument and cite
authority in support of a contention; failure to do so waives the
issue on appeal].)
                        DISPOSITION
      The order denying the petition to compel arbitration is
reversed and the matter is remanded for the trial court to
conduct further proceedings consistent with this opinion.
Appellant is to recover its costs on appeal.



                                     ZELON, Acting P. J.
I concur:



      FEUER, J.




                                 9
SEGAL, J., Dissenting.


       I agree an employee can impliedly accept an arbitration
agreement by continuing to work for his or her employer. I also
think an employee, like any other contracting party, can reject an
arbitration agreement offered by an employer and yet continue to
work for the employer. Whether an employer and an employee
entered into an implied agreement regarding the terms of
employment is a factual issue we routinely ask a trier of fact to
decide in employment cases. Because the facts in this case do not
support only one reasonable conclusion, I would defer to the trial
court’s resolution of that factual issue.
       “The issue of an implied agreement or consent is ordinarily
a factual question to be resolved by the trier of fact.” (Antelope
Valley Groundwater Cases (2018) 30 Cal.App.5th 602, 618, fn. 11;
see Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677
[whether the parties’ conduct created an implied agreement is
generally a question of fact]; Citizens for Amending Proposition L
v. City of Pomona (2018) 28 Cal.App.5th 1159, 1189 [“The
existence and scope of implied-in-fact contracts are determined
by the totality of the circumstances. [Citation.] ‘The question
whether such an implied-in-fact agreement exists is a factual
question for the trier of fact unless the undisputed facts can
support only one reasonable conclusion.’”]; Unilab Corp. v.
Angeles-IPA (2016) 244 Cal.App.4th 622, 636 [“Whether an
implied contract exists ‘“‘is usually a question of fact for the trial
court. Where evidence is conflicting, or where reasonable
conflicting inferences may be drawn from evidence which is not in
conflict, a question of fact is presented for decision of the trial
court.’”’”]; Kashmiri v. Regents of University of California (2007)
156 Cal.App.4th 809, 829 [“the question whether the parties’
conduct creates . . . an implied agreement is generally “‘a
question of fact”’”].) In the arbitration context, while “California
law permits employers to implement policies that may become
unilateral implied-in-fact contracts when employees accept them
by continuing their employment,” whether “employment policies
create unilateral contracts is ‘a factual question in each case.’”
(Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1508,
quoting Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 11.)
      Because we are reviewing the trial court’s resolution of a
factual issue, I would not apply, as the majority does, a de novo
standard of review. Indeed, I would not even apply a substantial
evidence standard of review. I think the standard of review is
much more onerous on the appellant in this case.
      As the majority acknowledges, Sohnen had the burden of
proving the existence of the implied arbitration agreement. (Maj.
opn. at p. 4; see Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“[t]he
party seeking arbitration bears the burden of proving the
existence of an arbitration agreement”]; Cohen v. TNP 2008
Participating Notes Program, LLC (2019) 31 Cal.App.5th 840,
859 [same].) The trial court found Sohnen failed to meet its
burden. In this situation, we do not review the record to
determine whether substantial evidence supports the trial court’s
finding, but whether the evidence compels the opposite finding as
a matter of law. Thus, where the trier of fact, here the trial court
ruling on a motion to compel arbitration, “‘expressly or implicitly
concluded that the party with the burden of proof did not carry
the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial




                                 2
evidence supports the judgment. . . . [¶] [W]here the issue on
appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218
Cal.App.4th 828, 838; accord, Glovis America, Inc. v. County
of Ventura (2018) 28 Cal.App.5th 62, 71; Atkins v. City of
Los Angeles (2017) 8 Cal.App.5th 696, 734.) For this reason,
“‘[w]here, as here, the judgment is against the party who has the
burden of proof, it is almost impossible for him to prevail on
appeal by arguing the evidence compels a judgment in his favor.
That is because unless the trial court makes specific findings of
fact in favor of the losing plaintiff, we presume the trial court
found the plaintiff’s evidence lacks sufficient weight and
credibility to carry the burden of proof. [Citations.] We have no
power on appeal to judge the credibility of witnesses or to
reweigh the evidence.’” (Patricia A. Murray Dental Corp. v.
Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.)
       The evidence does not compel a finding Diaz and Sohnen
impliedly agreed to arbitrate. The evidence shows Diaz attended
a meeting on December 2, 2016, where Marla Carr, Sohnen’s
chief operating officer, and Eliana Diaz, an employee in the
human resources department, announced the company was
implementing a new arbitration policy. Carr and Eliana Diaz
gave the employees copies of the new dispute resolution
agreement, “in English and Spanish, to take home and review.”




                                3
Eliana Diaz and Carr, however, had different recollections of the
chronology of events. Eliana Diaz did not state in her declaration
that employees were told on December 2, 2016 that, even if they
refused to sign the arbitration agreement, continuing to work at
the company would constitute acceptance of the agreement.
Eliana Diaz stated it was not until December 19, 2016 that,
during a private meeting with Diaz, she read Diaz a document
stating, “If you continue working for Sohnen Enterprises on or
after December 20, 2016, your actions will be viewed just as if
you signed the [arbitration agreement].” Eliana Diaz also stated
in her declaration that, in the meantime, Diaz told her on
December 14, 2016 she would not sign the arbitration agreement.
Eliana Diaz also said that on December 23, 2016 Sohnen received
a letter from Diaz’s attorney dated December 20, 2016 again
rejecting the arbitration agreement. The letter from counsel for
Diaz stated: “This letter will serve as a formal response [to], and
rejection of, the attempt at obtaining Ms. Erika Diaz’[s]
agreement to forced arbitration as set forth in an agreement
presented to her on, or about, 12-2-16.” The letter also stated
that Diaz “intends to, and will continue, with [sic] her
employment by Sohnen Enterprises on all the terms, and
conditions, of her employment in effect prior to the presentation
to her of the [arbitration agreement].”
       On the other hand, Carr stated in her declaration that at
the December 2, 2016 meeting she “explained in English the
basic terms of the [arbitration agreement]” and “[s]pecifically”
told the employees that “continued employment would constitute
acceptance” of the agreement. The documentary evidence,
however, does not support this statement in her declaration. The
memorandum advising Diaz that Sohnen would consider




                                 4
continued employment as acceptance is dated December 19, not
December 2. In addition, the December 19 memorandum
suggests that it was the first time the company had made this
statement and that Diaz had until the next day to decide
(presumably demonstrated by continuing to work, because Diaz
had already said she was not going to sign the arbitration
agreement) whether she would agree to the arbitration provision.
The document states: “This memo is to inform you that if you
continue working for Sohnen Enterprises on or after December
20, 2016, you will be deemed for all purposes to have accepted the
terms of the [arbitration agreement].” (Italics added.) Counsel
for Diaz wrote his letter the next day.
       This evidence created factual disputes and supported
different reasonable conclusions about what happened and
whether Diaz impliedly agreed to Sohnen’s proposed arbitration
agreement. The trial court resolved this conflict in favor of Diaz
and ruled the parties did not reach an implied agreement to
arbitrate. The court stated, “You can’t have an agreement where
one side says, ‘This is the deal,’ and the other side says, ‘No, this
is not the deal,’” and the court found “there [was] no meeting of
the minds.” We do not have the authority to reweigh the
evidence and come to a different conclusion, let alone conclude
the evidence compels a finding the parties did enter into an
implied agreement.
       There was also a conflict in the evidence concerning
whether the employees needed to sign the arbitration agreement
in order to accept it. The arbitration agreement stated it had to
be accepted in writing: “[B]y my signature below . . . I agree to
comply with and be bound by this Agreement.” But Carr stated
she told the employees they could accept the arbitration




                                  5
agreement, even if they did not sign it, by continuing to work
there. Which was it? Again, the trial court resolved this conflict
against Sohnen and found Diaz did not accept the agreement, a
finding we should respect on appeal. (See Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 337 [“Where there is no
express agreement, the issue is whether other evidence of the
parties’ conduct has a ‘tendency in reason’ (Evid. Code, § 210) to
demonstrate the existence of an actual mutual understanding on
particular terms and conditions of employment. If such evidence
logically permits conflicting inferences, a question of fact is
presented.”].) The trial court’s ruling was also consistent with
California cases holding that courts will not imply an employee’s
consent to an arbitration agreement where the agreement
requires the employee’s signature to be effective. (See Gorlach v.
Sports Club Co., supra, 209 Cal.App.4th at p. 1509 [court would
not “imply the existence of [an arbitration] agreement” where
“the handbook told employees that they must sign the arbitration
agreement, implying that it was not effective until (and unless)
they did so,” and the employee “never signed the arbitration
agreement”]; Mitri v. Arnel Management Co. (2007) 157
Cal.App.4th 1164, 1172-1173 [no implied agreement to arbitrate
where the agreement’s “express term requir[ed] a signed
agreement”].)
      None of the cases the majority or Sohnen cites involved a
plaintiff who expressly rejected the arbitration agreement, as
Diaz did here twice (once orally and once in writing). (See Scott
v. Education Management Corporation (3d Cir. 2016) 662
Fed.Appx. 126, 130-131 [continuing to work did not constitute an
implied agreement to an arbitration provision where the
employees “promptly voiced their specific objection to and




                                6
rejection of the ADR policy” and, “[r]ather than indicate their
assent, both men quite clearly expressed their strong
disagreement with its terms”]; Bayer v. Neiman Marcus
Holdings, Inc. (N.D.Cal. Nov. 8, 2011, No. CV 11-3705 MEJ) 2011
WL 5416173, at p. 5 [employee did not impliedly agree to an
arbitration agreement where the employee refused to sign the
arbitration agreement and told his supervisors he was not
agreeing to the employer’s arbitration program]; Kunzie v. Jack-
In-The-Box, Inc. (Mo.Ct.App. 2010) 330 S.W.3d 476, 486
[employee’s “rejection [of an arbitration agreement] and
continued employment, under basic contract principles,
reasonably could be viewed as [the employee’s] counteroffer to
[the employer] that [the employee] would continue his
employment without being subject to [the employer’s] arbitration
policy,” and the employer’s “failure to then terminate [the
employee’s] employment could be deemed to constitute an
acceptance of such counter-offer”].) Presented with evidence of
those two express rejections and, at most, 18 days (December 2 to
December 20, 2016) of continued employment, the trial court was
entirely justified in giving the former more weight than the
latter, and we should defer to that finding. (See Haworth v.
Superior Court (2010) 50 Cal.4th 372, 385 [trial courts “generally
are in a better position to evaluate and weigh the evidence”];
Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th
1548, 1562 [“‘[i]t is the exclusive function of the trial court to
weigh the evidence, resolve conflicts and determine the
credibility of witnesses’”]; see also Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711, fn. 3 [“that the trial court’s findings
were based on declarations and other written evidence does not
lessen the deference due those findings”]; Ramos v. Homeward




                                 7
Residential, Inc. (2014) 223 Cal.App.4th 1434, 1441 [“we defer to
factual determinations made by the trial court when the evidence
is in conflict, whether the evidence consists of oral testimony or
declarations”]; Poniktera v. Seiler (2010) 181 Cal.App.4th 121,
130 [“we resolve all conflicts in favor of the judgment, even when
(as here) the trial court’s decision is based on evidence received
by declaration rather than by oral testimony”].)
       The cases the majority cites are also factually
distinguishable. Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC, supra, 55 Cal.4th 223 did not
involve an implied agreement to arbitrate, by conduct or
otherwise. In that case there was a written arbitration
agreement in the applicable CC&Rs. (Id. at p. 231.) The court in
Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 held the
employee’s continued employment constituted acceptance of an
arbitration agreement her employer had proposed. (Id. at pp.
420-421.) But the employee in that case continued to work at the
company for four years (id. at pp. 418, 421), without ever saying a
word about the arbitration agreement, whereas Diaz continued to
work at Sohnen one day or 18 days and expressly rejected the
arbitration agreement twice. And in Harris v. TAP Worldwide,
LLC (2016) 248 Cal.App.4th 373 the employer gave the employee
the arbitration agreement when the employee began working full
time, and the employee worked at the company for at least a year
(and perhaps three)1 before the company terminated his


1     The defendant in Harris terminated the plaintiff’s
employment in December 2013. (Harris v. TAP Worldwide, LLC,
supra, 248 Cal.App.4th at p. 376.) The new arbitration policy
went into effect in January 2010. (Id. at p. 379.) The plaintiff
stated he signed the acknowledgement of receipt of the




                                8
employment. (See id. at pp. 376-377.) Again, a far cry from the
(at most) 18 days Diaz continued to work at Sohnen before she
rejected the agreement in writing.
       Neither Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610
nor DiGiacinto v. Ameriko-Omserv Corp. (1997) 59 Cal.App.4th
629, both cited by the majority, involved an arbitration
agreement, express or implied. (See Gorlach v. Sports Club Co.,
supra, 209 Cal.App.4th at p. 1510 [“‘DiGiacinto v. Ameriko-
Omserv Corp. [did not] address[ ] whether an arbitration
agreement existed between an employer and employee’”]; Mitri v.
Arnel Management Co., supra, 157 Cal.App.4th at p. 1171
[same].) Certainly, as the majority points out (maj. opn. at p. 7),
“California law permits employers to implement policies that may
become unilateral implied-in-fact contracts when employees
accept them by continuing their employment.” (Asmus v. Pacific
Bell, supra, 23 Cal.4th at p. 11.) But here the evidence was
disputed whether Sohnen made such a unilateral change in the
terms of Diaz’s employment. There was some evidence Sohnen
intended to implement arbitration unilaterally, which Diaz could
accept by continued employment, but there was also evidence
Sohnen intended to implement arbitration as part of a bilateral
agreement, which, as stated, Diaz could accept by signing the
agreement. Indeed, the language of the arbitration agreement
suggested that the parties were intending to exchange mutual
promises, not that Sohnen was implementing arbitration
unilaterally. The arbitration agreement states, “By this
Agreement, you and Sohnen Enterprises . . . agree to resolve by


documents containing the arbitration provision in September
2012, “but the year was erroneously listed as 2010.” (Id. at p.
377.)




                                 9
arbitration any and all disputes arising out of or related to your
employment by [Sohnen].” (Italics added.) The agreement also
states, “By mutually agreeing to arbitrate covered disputes, we
both recognize that these disputes will not be resolved by a court
or jury.” (Italics added.) (See Bleecher v. Conte (1981) 29 Cal.3d
345, 350 [“[a] bilateral contract is one in which there are mutual
promises given in consideration of each other”].) The trial court
again resolved these factual issues in favor of Diaz. (See Asmus,
at p. 11 [“whether employment policies create unilateral
contracts will be a factual question in each case”]; Davis v. Jacoby
(1934) 1 Cal.2d 370, 378 [in many cases, “whether the particular
offer is one to enter into a bilateral or unilateral contract”
depends on “the intent of the offerer and the facts and
circumstances of the case”].)
       Finally, I believe that courts, not employers, should
determine whether there is an implied agreement to arbitrate.
That the employer told its employees continued employment
would constitute acceptance, or that the employer gave the
employee a reasonable period of time to consider whether to sign
an arbitration agreement, is evidence that may support a finding
the parties entered into an implied agreement. But it is not the
only evidence a trier of fact can consider. The majority’s decision
takes from courts the power to determine whether (the party
seeking to compel arbitration has met its burden of proving) the
evidence shows an implied agreement to arbitrate, because the
decision gives employers the unilateral power to create an
implied agreement simply by announcing that continued
employment will constitute acceptance, no matter how strongly
or clearly the employee manifests his or her rejection of the
proposed agreement. Carr’s memorandum stated that continuing




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to work for Sohnen would “be viewed” as acceptance. The issue
for me is, “viewed” by whom? I believe the “viewer” should be the
court, not the employer.
       Because in my opinion the majority applies the wrong
standard of review and does not give sufficient deference to the
trial court’s resolution of the factual issues in this case, I
respectfully dissent.



           SEGAL, J.




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