Filed 4/30/14 Coffey v. Beverages & More CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

LISA COFFEY,                                                         B243361

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC477269)
         v.

BEVERAGES & MORE, INC.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Amy D.
Hogue, Judge. Affirmed.

                                                         ______

         Jackson Lewis, Nicky Jatana, Benjamin J. Kim, and Clare Lucich for Defendant
and Appellant.

         Capstone Law, Melissa Grant, Glenn A. Danas, and Robert K. Friedl for Plaintiff
and Respondent.

                                                         ______
       Beverages & More, Inc. (Beverages), appeals from the superior court’s order
declining to compel arbitration of Lisa Coffey’s complaint. We conclude that substantial
evidence supports the court’s determination that Beverages failed to prove that Coffey
entered into an arbitration agreement with Beverages, and we therefore affirm.
                                    BACKGROUND
       Coffey alleges that at all relevant times she was a nonexempt, hourly employee
of Beverages. She filed suit against Beverages on behalf of herself and a putative class
of similarly situated nonexempt, hourly employees of Beverages. Coffey alleges various
violations of the Labor Code, including failure to pay overtime and minimum wages, as
well as violation of Business and Professions Code section 17200.
       Beverages moved to compel arbitration. In support of the motion, Beverages
submitted the declaration of its senior director for human resources, Kelly Purves.
Purves stated that “[p]rior to initiating employment with [Beverages], prospective
employees must read, complete and sign a number of ‘onboarding’ documents,”
which include an “Associate Handbook” (hereafter the “Handbook”) that “includes
an agreement to arbitrate employment-related claims” (hereafter the “Arbitration
Agreement”). Purves added that “[o]n information and belief, prior to October 2009,
[Beverages] provided these same onboarding documents in hardcopy form and required
employees to sign them by hand. In October 2009, [Beverages] transitioned the
onboarding process to an online website to ensure consistency and efficiency.”
“To initiate the onboarding process,” Beverages sends prospective employees an email
containing “a hyperlink directing them to a website to read, complete and electronically
sign the onboarding documents,” which are posted as PDF files. According to Purves,
Beverages sent such an email to Coffey, who electronically signed the Handbook, which
includes the Arbitration Agreement. Attached as exhibits to Purves’s declaration were
three “relevant pages” of the Handbook, as well as a copy of “the confirmation of
Ms. Coffey’s electronic signature for these documents.” Attached as an exhibit to a
subsequent declaration by Purves is what appears to be a copy of all pages of the
“onboarding materials” that were provided to Coffey, which total just over 70 pages.


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       The “confirmation of Ms. Coffey’s electronic signature” consists of a single page
bearing Coffey’s name at the top. Under the headings “Signed Documents” and “The
following documents have been signed,” the page lists the names of 12 PDF files, one of
which is identified as “BevMo’ Assoc Handbook.” Next to each file name are the words
“Signed by Employee,” followed by a date and time of day.
       The complete Handbook document that is attached to Purves’s later declaration
begins with a title page, a copyright page, and a table of contents, followed by 37 pages
of text, which are consecutively paginated. The last section listed in the table of
contents is “Termination,” which appears in its entirety on page 34. Page 35 is entitled
“Acknowledgement of Having Read and Understood This Handbook.” It begins,
“I acknowledge that I have received a copy of the Beverages & more! Associate
Handbook and understand that it contains important information about personnel policies
and my privileges and obligations as an Associate.” The same page provides two lines
for the employee’s initials as acknowledgement that the employee has “carefully
reviewed and sought answers to [the employee’s] questions if necessary in certain key
sections, including: [¶] Associate Expectations contained in Section 5” and “Ethical
Standards contained in Section 6.1.” (Bold omitted.) Coffey’s initials do not appear on
either line; both lines are blank. The same page also states the following: “I understand
that the guidelines contained in this handbook are not intended to create any contractual
rights or obligations, express or implied.” Page 36 states, “I understand and agree that
this Acknowledgement contains a full and complete statement of the agreements and
understandings that it recites, that no one has made any promises or commitments to me
contrary to the foregoing, and that this Acknowledgement supersedes all previous
agreements, whether written or oral, express or implied, relating to the subjects covered
in this Acknowledgement.” After that integration clause, there are lines for the employee
to fill in the date, the employee’s signature, and the employee’s printed name. All of
those lines are blank as well.
       Page 37 of the document is entitled “Arbitration.” It begins, “In consideration of
our mutual promises and our at-will employment relationship, Beverages & more!, Inc.


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(‘Beverages & more!’) and I (‘Associate’) agree” to arbitrate, on specified terms
and conditions, “[a]ny controversy or claim arising out of or relating to Associate’s
employment or termination of employment . . . that cannot be resolved between the
parties themselves.” Again, there are lines for the employee to fill in the date, the
employee’s signature, and the employee’s printed name. Again, all of those lines are
blank.
         In contrast, numerous other “onboarding” documents attached to Purves’s later
declaration have signature lines that are not blank but rather include Coffey’s typed
“signature.” The document immediately following the Handbook is entitled “General
Safe Job Procedures,” and the name “Lisa Coffey” is typed on the signature line.
Coffey’s typed “signature” likewise appears on the signature lines of no less than nine
additional “onboarding” documents.
         The superior court denied Beverages’ motion to compel arbitration, concluding
that Beverages “has failed to prove the existence of an enforceable arbitration agreement
by a preponderance of the evidence.” The court observed that the Handbook’s
acknowledgement page and the Arbitration Agreement have their own signature lines,
but, by Purves’s own admission, employees “do not have the ability to submit a separate
electronic signature for the Agreement.” The court reasoned that “[t]he problem is that
the receipt of a single signature is inconclusive with respect to the independent formation
of an agreement to arbitrate,” because “the single signature is susceptible of an inference
that [the employee] signed either or both provisions.” The court also noted that the
Handbook “is ambiguous and inconsistent on the question whether it creates any
enforceable agreement to arbitrate.” As noted above, the Handbook’s acknowledgement
includes a disclaimer that “the guidelines contained in this handbook are not intended to
create any contractual rights or obligations,” but “it does not define or limit the term
‘guidelines.’ Indeed, nothing in the Handbook suggests that the term ‘guidelines’ in the
disclaimer is limited to certain provisions in the Handbook rather than generally
applicable.” Accordingly, the court concluded that “the arbitration agreement . . . is
embraced by the terms of the disclaimer and unenforceable.” For all of these reasons, the


                                              4
court concluded that Beverages “has failed to prove the threshold requirement—the
existence of an agreement to arbitrate.”
       Beverages timely appealed from the order denying its motion to compel
arbitration.
                                         DISCUSSION
       The party seeking to compel arbitration “bears the burden of establishing the
existence of a valid agreement to arbitrate.” (Banner Entertainment, Inc. v. Superior
Court (1998) 62 Cal.App.4th 348, 356.) In ruling on a motion to compel arbitration,
“[t]he trial court sits as a trier of fact, weighing all the affidavits, declarations, and
other documentary evidence, as well as oral testimony received at the court’s discretion.”
(Id. at pp. 356-357.) We must affirm the court’s determination of the existence or
nonexistence of an agreement to arbitrate if that determination is supported by substantial
evidence. (Id. at p. 357.)
       In its opening brief, Beverages asserts that we should review the trial court’s order
de novo. In her respondent’s brief, however, Coffey contends that the trial court’s factual
determination of the existence or nonexistence of an agreement to arbitrate is reviewed
under the substantial evidence standard, which applies to factual findings in general.
(See Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d
881, 888.) We conclude that the contention is correct.
       The record contains substantial evidence to support the superior court’s finding.
The record contains evidence of (1) a single signature for the entire Handbook document
with no indication of whether Coffey intended to be signing the acknowledgement or the
Arbitration Agreement or both, (2) typed signatures on the signature lines of numerous
other onboarding documents and the absence of any such signature on any signature line
in the Handbook (including the Arbitration Agreement), and (3) the Handbook’s express
disclaimer that its “guidelines” (a term left undefined by the Handbook) create any
contractual rights or obligations. That evidence constitutes more than substantial
evidence supporting the superior court’s determination that Beverages failed to prove that
Coffey agreed to arbitration.


                                                5
       Next, Beverages argues that even if Coffey did not expressly agree to arbitration,
she implicitly agreed to it by accepting employment with Beverages. It is true that an
arbitration agreement need not be signed in order to be valid and enforceable (see, e.g.,
Genesco, Inc. v. T. Kakiuchi & Co., Ltd. (2d Cir. 1987) 815 F.2d 840, 846), but we are
not persuaded that the record here supports (let alone compels) an inference that Coffey
implicitly agreed to arbitration. Nothing in the record indicates that Coffey was informed
or believed that Beverages’ offer of employment was conditioned on her agreement to
arbitrate. The only evidence that Beverages cites is (1) the Arbitration Agreement states
that it (i.e., the Arbitration Agreement) is “[i]n consideration of our mutual promises and
our at-will employment relationship,” and (2) Purves’s statement that prospective
employees were “given up to 24 hours to review the Handbook (which also contains the
[Arbitration] Agreement.” Neither piece of evidence supports the inference urged by
Beverages. Any term that either party might wish to add to their employment agreement
could be characterized by that party as being “[i]n consideration of our mutual promises
and our at-will employment relationship,” but it does not follow that the proposed term
is a required condition of entering into that relationship. And giving Coffey “up to
24 hours” to review the Handbook of course did not alert her that agreeing to arbitration
was a condition of her employment.
       In arguing that Coffey implicitly agree to arbitrate, Beverages relies on Craig v.
Brown & Root, Inc. (2000) 84 Cal.App.4th 416, but that reliance is misplaced. In that
case, the plaintiff was already an employee of the defendant when the defendant
sent a memorandum to all employees, imposing on all employees a “Dispute Resolution
Program” that included arbitration and stating that “IT APPLIES TO YOU.”
(Id. at pp. 418-419.) The court inferred that by continuing to work for the defendant
after receiving the memorandum, the plaintiff implicitly agreed to the dispute resolution
program. (Id. at p. 422.) Here, no evidence supports such an inference. Again,
nothing in the record indicates that Coffey was informed or believed or should have
known that Beverages’ offer of employment was conditioned on her agreement to
arbitrate.


                                             6
       Beverages also refers us to the strong policy, under both federal and California
law, favoring enforcement of arbitration agreements according to their terms and placing
arbitration agreements “on an equal footing with other contracts.” (AT&T Mobility LLC
v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740, 1745].) Although we of course
recognize those well-established policies, it is equally well-established that “there is no
policy compelling persons to accept arbitration of controversies which they have not
agreed to arbitrate” (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d
473, 481) and that “‘[a]bsent a clear agreement to submit disputes to arbitration, courts
will not infer that the right to a jury trial has been waived’” (Adajar v. RWR Homes, Inc.
(2008) 160 Cal.App.4th 563, 569, quoting Knight et al., Cal. Practice Guide: Alternative
Dispute Resolution (The Rutter Group 2007) ¶ 5:8.3, pp. 5-5 to 5-6). Here, the superior
court’s determination that Beverages failed to prove the existence of a clear agreement
to arbitrate is supported by substantial evidence. We therefore must affirm that
determination, and our resolution of that issue makes it unnecessary for us to address
the remainder of the issues raised by the parties.
                                      DISPOSITION
       The order is affirmed. Respondent shall recover her costs of appeal.
       NOT TO BE PUBLISHED.



                                                     ROTHSCHILD, Acting P. J.
We concur:



              JOHNSON, J.



              MILLER, J.



        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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