Filed 12/11/17

                           CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



VIRGIL JENSEN et al.,

        Plaintiffs and Respondents,                  E065887

v.                                                   (Super.Ct.No. CIVDS1504522)

U-HAUL CO. OF CALIFORNIA,                            OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,

Judge. Affirmed.

        Alston & Bird, Todd B. Benoff and Jesus J. Torres for Defendant and Appellant.

        Law Offices of Steven Zwick, Steven Zwick and James Alquist for Plaintiffs and

Respondents.

                                   I. INTRODUCTION

        In this tort action, plaintiffs and respondents Virgil Jensen and Glenda Jensen

contend that they suffered damages caused by a negligently maintained rental truck,

which blew a tire while Virgil Jensen was driving it. Defendant and appellant U-Haul

Co. of California (UHCA) appeals from the trial court’s denial of its motion to compel

                                              1
arbitration. UHCA contends that plaintiffs are bound by the arbitration agreement in the

rental contract, even though neither plaintiff is a party to that contract. We affirm the

trial court’s ruling.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiffs brought suit on April 13, 2015, alleging causes of action for negligence

and (as to Glenda Jensen only) loss of consortium. UHCA subsequently filed a motion to

compel arbitration and to stay further proceedings in the trial court. In relation to

UHCA’s motion, the parties submitted a stipulation agreeing to the following facts:

       “1. On July 11, 2013, Plaintiff Virgil Jensen was an employee of CTS Global

Products, USA, Inc. (‘CTS’).

       “2. On July 11, 2013, Charles Scannell, Mr. Jensen’s supervisor, rented a truck

from UHCA.

       “3. Plaintiff Virgil Jensen was hired as a warehouse worker for CTS.

       “4. On July 11, 2013, Mr. Scannell instructed Plaintiff Virgil Jensen to use the

UHCA truck to transport CTS’s massage chairs and exercise machines to the Sacramento

State Fair. This was allegedly the first time that Mr. Jensen ever drove a truck on behalf

of CTS.

       “5. On July 11, 2013, Plaintiff followed Mr. Scannell’s instructions and

transported CTS’s massage chairs and exercise machines in the UHCA truck to the

California State Fair. During the trip, Plaintiff was allegedly injured when the tire on the

UHCA truck blew out (‘the Incident’).



                                              2
       “6. Plaintiff filed a worker’s compensation claim against CTS regarding the

Incident alleged in his Complaint arising out of his use of the UHCA truck.

       “7. The parties agreed that Plaintiff’s alleged injuries occurred during the course

and scope of his employment with CTS—that at the time of the Incident alleged in the

Complaint, Plaintiff Virgil Jensen was acting at the direction of CTS.

       “8. At the time of the Incident, Plaintiff Virgil Jensen allegedly had no knowledge

of an alleged Agreement to Arbitrate Claims under the UHCA rental agreement, and

Mr. Jensen had never signed the UHCA rental agreement.”

       In support of its motion, UHCA also presented evidence that an arbitration

agreement is incorporated into each of its rental contracts, including the one signed by

Mr. Scannell. The arbitration agreement provides that “You and U-Haul agree that any

and all Claims . . . between You and U-Haul relating in any way to your rental . . . from

U-Haul shall be submitted to binding Arbitration . . . .” It defines the term “‘You’” to

include “You and Your respective . . . agents, employees . . . [and] all authorized or

unauthorized users of the U-Haul equipment . . . .” The term “‘Claim’” is defined

“broadly” to include “any and all legal theories, including but not limited to, all statutory

and tort claims, that may be asserted by You.”

       Additionally, UHCA presented evidence that Mr. Scannell is not only

Mr. Jensen’s supervisor, but also the owner, chief executive officer, chief financial

officer, secretary, and sole director of CTS.

       The trial court denied UHCA’s motion.



                                                3
                                     III. DISCUSSION

       A. Standard of Review.

       “In general, ‘[t]here is no uniform standard of review for evaluating an order

denying a motion to compel arbitration. [Citation.] 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.’” (Laswell v. AG Seal Beach, LLC (2010) 189

Cal.App.4th 1399, 1406.) In the absence of conflicting extrinsic evidence, “‘[w]hether

and to what extent [nonsignatories] can also enforce the arbitration clause is a question of

law, which we review de novo.’” (Molecular Analytical Systems v. Ciphergen

Biosystems, Inc. (2010) 186 Cal.App.4th 696, 708.)

       B. Analysis.

       There is no doubt that plaintiffs’ claims fall within the extremely broad scope of

the arbitration agreement at issue. It is undisputed that Virgil Jensen was a “user” of the

UHCA equipment—we need not decide whether he was an “authorized” or

“unauthorized” user, since the agreement purports to encompass both—and plaintiffs’

claims arise from his use of that equipment. Nevertheless, whatever the breadth of the

contractual language, plaintiffs can only be forced to arbitrate their claims if they are

bound by the arbitration agreement entered into by Mr. Scannell and UHCA.

       “Persons are not normally bound by an agreement entered into by a corporation in

which they have an interest or are employees.” (Suh v. Superior Court (2010) 181

Cal.App.4th 1504, 1513 (Suh).) More specifically, as a general rule, “[t]he right to

                                              4
arbitration depends on a contract, and a party can be compelled to submit a dispute to

arbitration only if the party has agreed in writing to do so.” (Matthau v. Superior Court

(2007) 151 Cal.App.4th 593, 598 (Matthau).) “Even the strong public policy in favor of

arbitration does not extend to those who are not parties to an arbitration agreement or

who have not authorized anyone to act for them in executing such an agreement.”

(County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th

237, 245 (Contra Costa).)

       Nevertheless, there are circumstances under which persons who have not signed

an agreement to arbitrate are bound to do so. One treatise has stated that there are “six

theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by

reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and

(f) third-party beneficiary.’” (Suh, supra, 181 Cal.App.4th at p. 1513 [quoting 2

Oehmke, Commercial Arbitration (3d ed. 2006 update) § 41.57 at pp. 41-195]; see 1

Oehmke, Commercial Arbitration (3d ed. Aug. 2017 update) § 8.1 [similar].) “The

California cases binding nonsignatories to arbitrate their claims fall into two categories.

In some cases, a nonsignatory was required to arbitrate a claim because a benefit was

conferred on the nonsignatory as a result of the contract, making the nonsignatory a third

party beneficiary of the arbitration agreement. In other cases, the nonsignatory was

bound to arbitrate the dispute because a preexisting relationship existed between the

nonsignatory and one of the parties to the arbitration agreement, making it equitable to

compel the nonsignatory to also be bound to arbitrate his or her claim.” (Contra Costa,

supra, 47 Cal.App.4th at p. 242.)

                                              5
       The parties have not cited to, nor have we discovered, any authority addressing

precisely analogous circumstances, that is, an attempt to enforce an arbitration clause in

an equipment rental agreement against the nonsignatory employee of the party that rented

the equipment. UHCA, citing to general principles and cases that it contends are

analogous, argues that plaintiffs are bound to arbitrate their claims, even though they are

not signatories to the agreement between Mr. Scannell and UHCA, on any of three

theories: third-party beneficiary, agency, or estoppel. We are not persuaded.

              1. Third-party Beneficiary.

       UHCA contends that Mr. Jensen is a third party beneficiary of the contract

between UHCA and Mr. Scannell. “A third party beneficiary is someone who may

enforce a contract because the contract is made expressly for his benefit.” (Matthau,

supra, 151 Cal.App.4th at p. 602.) “‘“The test for determining whether a contract was

made for the benefit of a third person is whether an intent to benefit a third person

appears from the terms of the contract.”’” (Cargill, Inc. v. Souza (2011) 201 Cal.App.4th

962, 967 (Cargill).) “‘[W]here . . . the issue [of whether a third party is an intended

beneficiary] can be answered by interpreting the contract as a whole and doing so in light

of the uncontradicted evidence of the circumstances and negotiations of the parties in

making the contract, the issue becomes one of law that we resolve independently.’”

(Souza v. Westlands Water Dist. (2006) 135 Cal.App.4th 879, 891.)

       Mr. Jensen is not a third-party beneficiary of the contract between Mr. Scannell

and UHCA. The rental agreement at issue contemplates the possibility that Mr. Scannell

might authorize someone other than himself to use the truck. Nothing in the terms of the

                                              6
agreement, however, demonstrates any express intent to benefit a third party—whether

Mr. Jensen specifically, or Mr. Scannell’s employees generally—on the part of either Mr.

Scannell or UHCA. (See Hayes Children Leasing Co. v. NCR Corp. (1995) 37

Cal.App.4th 775, 790 [sublessee of equipment not a third party beneficiary of contract for

lease of equipment, because final contract between lessee and lessor did not mention

sublessee].)

       In its briefing on appeal, UHCA points to the undisputed fact that “Mr. Scannell

rented the U-Haul Truck so that Mr. Jensen could transport CTS’s products . . . .” It is

doubtful, however, that this circumstance describes a benefit to Mr. Jensen; he drove the

truck not for his own benefit, but for the benefit of CTS. UHCA has not cited, and we

have not discovered, any case in which an employee has been found to be the third party

beneficiary of a contract between his or her employer and an equipment provider for the

supply of the equipment that the employee uses on the job. Moreover, even if UHCA

were correct that Mr. Jensen received a benefit, it is well established that the “mere fact

that a contract results in benefits to a third party does not render that party a ‘third party

beneficiary.’” (Matthau, supra, 151 Cal.App.4th at p. 602.) Rather, the terms of the

contract must demonstrate the express intent to confer the benefit. (Cargill, supra, 201

Cal.App.4th at p. 967.) As discussed above, the rental agreement between UHCA and

Mr. Scannell does not do so.

       We conclude that Mr. Jensen is not a third party beneficiary of the contract

between Mr. Scannell and UHCA, and reject that theory as a basis for requiring plaintiffs

to arbitrate their claims.

                                               7
              2. Agency.

       It is undisputed that Mr. Jensen was acting in his capacity as an employee of CTS

when he drove the truck rented by Mr. Scannell on July 11, 2013, and that he did so on

instructions from Mr. Scannell. UHCA contends that these facts demonstrate an agency

relationship that suffices to bind Mr. Jensen to the arbitration agreement entered into by

UHCA and Mr. Scannell. We disagree.

       There are cases in which an employee is held to be bound by an arbitration

agreement entered into by his or her employer, even though the employee did not sign on

to the agreement. 1 For example, in Harris v. Superior Court (1986) 188 Cal.App.3d 475

(Harris), a case relied on by UHCA, plaintiffs asserting claims of medical malpractice

sought to compel a doctor to participate in binding arbitration pursuant to a provision in a

contract between his employer, a medical group, and the patient’s health plan. (Id. at p.

477.) The Court of Appeal sided with the plaintiffs, remarking that it found the

employer-employee relationship “sufficient to bind [the doctor] to the arbitration

agreement which named [the medical group].” (Id. at p. 478.)

       In RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511

(RN Solution), the Court of Appeal cites Harris for the broad proposition that an

“employee of [a] corporation that is party to [an] arbitration agreement is bound by [the]


       1  We acknowledge, but will not discuss in any detail Mr. Jensen’s arguments
based on the circumstance that Mr. Scannell did not expressly indicate, when signing the
contract with UHCA, that he was acting in his capacity as a representative of CTS, rather
than in his individual capacity. It suffices, for present purposes, to note that those
arguments are unpersuasive.

                                             8
agreement” (RN Solution, supra, at p. 1520), and this is essentially UHCA’s position in

its briefing in this appeal. We are not persuaded, however, that this phrasing accurately

describes the circumstances in which it is appropriate to enforce an arbitration agreement

between the corporation and a third party against a nonsignatory employee of the

corporation. The general rule that “[p]ersons are not normally bound by an agreement

entered into by a corporation in which they have an interest or are employees” would be

vitiated by so broad an agency exception. (Suh, supra, 181 Cal.App.4th at p. 1513.) As

noted in Suh, the mere fact that parties are employees of a corporation “does not mean

they were bound” by an arbitration clause in an agreement between the corporation and a

third party. (Id. at p. 1514.)

       Moreover, neither Harris nor RN Solution in fact applies so broad a rule as some

of their language, taken in isolation, arguably suggests. In Harris, the doctor at issue was

not only an employee of the corporation that entered into the arbitration agreement, but

also a third-party beneficiary of that agreement. (Harris, supra, 188 Cal.App.3d at p.

479.) Similarly, in RN Solution, the party opposing enforcement of the arbitration

agreement in fact signed it in her capacity as the corporation’s president and CEO, and

had personally “benefited financially and professionally” from it, so she was not only an

“agent-employee” of the corporation, but also a third-party beneficiary. (RN Solution,

supra, 165 Cal.App.4th at p. 1520.)

       In our view, therefore, the proper inquiry is not only whether there is any sort of

preexisting agency relationship with one of the signatories to the arbitration agreement—

whether employer-employee, or another form of agency—but also whether that

                                             9
preexisting relationship is of such a nature that it supports a finding of “implied authority

for [one of the signatories] to bind [the nonsignatory] by their arbitration agreement.”

(Contra Costa, supra, 47 Cal.App.4th at p. 243.) It is critical to ask who is seeking to

bind whom, and on what basis; the question of whether a principal’s acts bind an agent is

fundamentally different from the question of whether an agent’s acts bind a principal.

       The employer’s implied authority to bind the employee to an arbitration agreement

is (at least arguably) discernible in the relationship between a doctor and a medical group

in Harris; the primary purpose of the medical group is to provide medical services to the

patients, and to provide patients to the doctor, so the doctor is reasonably bound to the

contracts between the medical group and patients or their health plans. (See Harris,

supra, 188 Cal.App.3d at p. 477; but see Walker v. Collyer (Mass.App.Ct. 2014) 9

N.E.3d 854, 856-857 [physician not compelled to arbitrate medical malpractice claim

pursuant to arbitration agreement between representative of deceased patient and facility

where physician practiced medicine and served as program medical director].) Such

implied authority is also discernable when the employee who was not technically a party

to the arbitration agreement in fact signed it in her capacity as president and CEO of a

corporation and personally benefitted from the contract. (RN Solution, supra, 165

Cal.App.4th at p. 1520.) Every California case finding nonsignatories to be bound to

arbitrate is based on facts that demonstrate, in one way or another, the signatory’s

implicit authority to act on behalf of the nonsignatory. (E.g., Madden v. Kaiser

Foundation Hospitals (1976) 17 Cal.3d 699, 702-709 [statutes granted state employers

implied authority to contract for medical plan on employees’ behalf]; Doyle v. Giuliucci

                                             10
(1965) 62 Cal.2d 606, 609-610 [minor bound by parent’s agreement to arbitrate medical

malpractice claim with health care provider]; Keller Construction Co. v. Kashani (1990)

220 Cal.App.3d 222, 228 [sole general partner of limited partnership “logically a

beneficiary of any agreement entered into on behalf of the partnership”]; Berman v. Dean

Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1001, 1004 [involving nonsignatory

“agent” husband investing community property funds in brokerage account opened under

wife’s signature].)

       The facts of the present case are different. The undisputed facts demonstrate an

agency relationship between Mr. Jensen and his employer, and that Mr. Jensen in fact

performed work at the direction of Mr. Scannell. There is nothing in the present record,

however, that requires the conclusion that Mr. Scannell had implicit authority (whether

acting on behalf of CTS, or in his individual capacity) to bind Mr. Jensen to an arbitration

agreement. Put another way: Nothing in evidence regarding Mr. Jensen’s role as a

“warehouse worker” for CTS takes the present case outside of the general rule that

“[p]ersons are not normally bound by an agreement entered into by a corporation in

which they have an interest or are employees.” (Suh, supra, 181 Cal.App.4th at p. 1513.)

       At oral argument, UHCA emphasized its position that no analysis of implied

authority is necessary where the nonsignatory to the arbitration agreement is an agent of

the signatory; that the agency relationship alone gives the signatory the authority to bind

the nonsignatory. As discussed above, this position is fundamentally incompatible with

the general rule that “[p]ersons are not normally bound by an agreement entered into by a

corporation in which they have an interest or are employees.” (Suh, supra, 181

                                             11
Cal.App.4th at p. 1513.) Moreover, UHCA’s position rests on partial and selective

analysis of the authority it cited in support. For example, at oral argument, counsel for

UHCA cited RN Solution, supra, 165 Cal.App.4th at p. 1511, as a case where an officer

of a corporation was found to have the authority to bind a nonsignatory employee to an

arbitration clause in a contract. In that case, however, the individual plaintiff who

opposed enforcement of the arbitration clause in the contract was in fact a signatory to

the contract at issue, in her role as president and CEO of the plaintiff corporation. (Id. at

p. 1520.) The Court of Appeal also remarks that one of the defendants, a nonsignatory

employee of the defendant corporation who joined his employer in attempting to compel

arbitration, was “bound by the arbitration agreement and entitled to enforce it.” (Ibid.)

That nonsignatory employee defendant, however, was allegedly “a managing agent and

vice-president of human resources” who “oversaw” the contract at issue for his employer,

and allegedly used that position to coerce the individual plaintiff into a sexual

relationship. (Id. at pp. 1513, 1520.) Mr. Jensen’s involvement with the contract at issue

here is, to say the least, distinguishable from that of both of these parties in RN Solution.

       Similarly, at oral argument, counsel for UHCA highlighted the Court of Appeal’s

comment in NORCAL Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64 (NORCAL

Mutual) that if the respondent had been an employee of the signatory to the contract at

issue, “there would appear to be little question that she would be bound by the arbitration

agreement . . . .” (Id. at p. 77.) In that case, the respondent had been sued, along with her

husband, in a medical malpractice action; her husband was a therapist, she was not, but

she had allegedly taken part in the treatments that led to the malpractice action. (Id. at

                                              12
pp. 66-67.) The insurance policy issued by NORCAL Mutual to the therapist husband

expressly covered his employees and “‘health care extenders’ for whom he was legally

responsible . . . .” (Id. at p. 77.) If the respondent had been his employee, therefore, she

would have been a third party beneficiary of the contract, and bound to the arbitration

clause on that basis. (See section II.B.1, ante.) Moreover, the respondent had demanded

that NORCAL Mutual provide her coverage under the policy. (NORCAL Mutual, supra,

at pp. 67, 77.) As such, she was estopped from refusing to arbitrate. (See section II.B.3,

post.) NORCAL Mutual is not fairly read to stand for the proposition advanced by UHCA

regarding implied authority of an employer to bind its employees to arbitration

agreements.

       For the above reasons, we find UHCA’s arguments based on the agency

relationship between Mr. Jensen and his employer unpersuasive.

       3. Estoppel.

       UHCA contends that the “trial court also erred when it held that Mr. Jensen is not

equitably estopped from repudiating the Arbitration Agreement.” We find no error.

       A nonsignatory plaintiff may be estopped from refusing to arbitrate when he or

she asserts claims that are “dependent upon, or inextricably intertwined with” the

underlying contractual obligations of the agreement containing the arbitration clause.

(JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1239.) “The focus

is on the nature of the claims asserted . . . . That the claims are cast in tort rather than

contract does not avoid the arbitration clause.” (Boucher v. Alliance Title Co., Inc.

(2005) 127 Cal.App.4th 262, 272.) Rather, “‘[t]he plaintiff’s actual dependence on the

                                               13
underlying contract in making out the claim against the nonsignatory . . . is . . . always

the sine qua non of an appropriate situation for applying equitable estoppel.’” (Goldman

v. KPMG, LLP (2009) 173 Cal.App.4th 209, 229 (Goldman), quoting In re Humana Inc.

Managed Care Litigation (11th Cir. 2002) 285 F.3d 971, 976.) “[E]ven if a plaintiff’s

claims ‘touch matters’ relating to the arbitration agreement, ‘the claims are not arbitrable

unless the plaintiff relies on the agreement to establish its cause of action.’” (Goldman,

supra, at p. 230, quoting Palmer Ventures LLC v. Deutsche Bank AG (5th Cir. 2007) 254

Fed. Appx. 426, 431-432.) “The fundamental point” is that a party is “not entitled to

make use of [a contract containing an arbitration clause] as long as it worked to [his or]

her advantage, then attempt to avoid its application in defining the forum in which [his

or] her dispute . . . should be resolved.” (NORCAL Mutual Ins. Co. v. Newton (2000) 84

Cal.App.4th 64, 84.)

       Our review of plaintiffs’ complaint shows that plaintiffs do not rely or depend on

the terms of the rental agreement between Mr. Scannell and UHCA in asserting their

claims, and none of their allegations are in any way founded in or bound up with the

terms or obligations of that agreement. The complaint mentions that the truck that

allegedly injured Mr. Jensen was rented from UHCA, but the asserted claims of

negligence and loss of consortium are “fully viable without reference to the terms” of the

rental agreement. (Goldman, supra, 173 Cal.App.4th at p. 230.) “That being so, the

basis for equitable estoppel—relying on an agreement for one purpose while disavowing

the arbitration clause of the agreement—is completely absent.” (Ibid.)



                                             14
       UHCA’s arguments in support of the contrary conclusion conflate two separate

and distinct issues: (1) whether a signatory plaintiff’s claims sufficiently relate to or arise

from a contract, so as to fall within the scope of the arbitration clause that was agreed to

by the parties to that contract; and (2) whether a nonsignatory plaintiff’s claims are so

dependent on and inextricably intertwined with the underlying contractual obligations of

the agreement containing the arbitration clause that equity requires those claims to be

arbitrated. 2 We are persuaded that if Mr. Scannell had alleged injuries similar to those

allegedly suffered by Mr. Jensen, and he asserted similar claims, he would be required to

arbitrate the matter because of the dispute’s “roots in the relationship between the parties

which was created by the contract” and the broad language of the arbitration agreement at

issue. (Berman v. Dean Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1003.) But a

different analysis applies to plaintiffs’ claims. 3




       2  UHCA has requested that we take judicial notice of three trial court orders in
unrelated cases, compelling the plaintiffs to arbitrate “tort cases related to the use of U-
Haul rental vehicles or equipment.” At least two of these cases, however, and possibly
the third, involved plaintiffs who were parties to the rental contract containing the
arbitration agreement. Even if properly the subject of a request for judicial notice,
therefore, these trial court orders are irrelevant to our analysis, and the request is
accordingly denied. (See State of California ex rel. Metz v. Farmers Group, Inc. (2007)
156 Cal.App.4th 1063, 1071, fn. 7.)

       3 Because we reject each of UHCA’s asserted bases for holding plaintiffs to be
bound by the arbitration clause, we need not, and do not, address the parties’ arguments
with respect to whether the rental agreement was procedurally or substantively
unconscionable.

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                                     IV. DISPOSITION

      The order appealed from is affirmed. Plaintiffs and respondents Virgil Jensen and

Glenda Jensen are awarded their costs on appeal.

      CERTIFIED FOR PUBLICATION.


                                                            CODRINGTON
                                                                                    J.
We concur:


      MCKINSTER
                      Acting P. J.

      SLOUGH
                                J.




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