                                                                    ..udfi I tir Mrr::ALb bi
                                                                     STATE OF WASHIMGTO.

                                                                     20IMAPR2I     AH Ih 36




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAMON TULIP,                                     No. 69306-9-1

                        Appellant,               DIVISION ONE

                v.



SERVICE CORPORATION
INTERNATIONAL, SCI FUNERAL AND
CEMETERY PURCHASING
COOPERATIVE, INC., SCI WESTERN                   UNPUBLISHED OPINION
MARKET SUPPORT CENTER, L.P.
a/k/a SCI WESTERN MARKET
SUPPORT CENTER, INC., SCI
WASHINGTON FUNERAL SERVICES,
INC., GREENWOOD MEMORIAL
PARK CEMETERY & FUNERAL
HOME, JANE D. JONES, THOMAS
RYAN,

                         Respondents.            FILED: April 21, 2014

        Schindler, J. — Damon Tulip filed a petition to compel arbitration of his state law

wage claims after the class action wage claim lawsuits were dismissed and over three

and one-half years after his employment ended. The court dismissed his petition to

compel with prejudice. We affirm.

                                          FACTS

        Service Corporation International (SCI) owns funeral homes nationwide. In

September 2004, SCI Washington Funeral Services Inc. hired Damon Tulip to work at
No. 69306-9-1/2


Greenwood Memorial Park Cemetery and Funeral Home in Renton as a Family Service

Counselor and Community Service Counselor. Tulip signed a "Principles of

Employment" agreement (Agreement). The Agreement states that all disputes relating

to any aspect of Tulip's employment with SCI shall be resolved through binding

arbitration, and any claim must be presented in writing "within one year of the date the

claiming party knew or should have known of the facts giving rise to the claim."

      The Agreement states, in pertinent part:

       1.     Matters Subject To Arbitration. Employee and the Company agree
      that, except for the matters identified in Section 2 below and except as
      otherwise provided by law, all disputes relating to any aspect of
      Employee's employment with the Company shall be resolved by binding
       arbitration. This includes, but is not limited to, any claims against the
       Company, its affiliates or their respective officers, directors, employees, or
       agents for breach of contract, wrongful discharge, defamation,
       misrepresentation, and emotional distress, as well as any disputes
       pertaining to the meaning or effect of this Agreement. The arbitration shall
       be conducted in accordance with the procedures attached hereto as
       Exhibit "A." This agreement to arbitrate shall cover disputes arising both
       before and after the execution of this document, except to the extent that
       any litigation has already been filed as of the date hereof.
       2.      Exclusions. It is expressly agreed and understood that this
       Agreement shall not govern the following: (1) any claims brought under
       federal discrimination laws (including Title VII of the Civil Rights Act) or
       any other federal laws administered by the Equal Employment Opportunity
       Commission, (2) claims for workers' compensation or unemployment
       benefits, or (3) claims brought to enforce any noncompetition or
       confidentiality agreement which may exist between the parties.
       3.     Notification/Timeliness Of Claims. Any claim which either party has
       against the other, other than a claim based on employment discrimination,
       must be presented in writing bv the claiming party to the other within one
       year of the date the claiming party knew or should have known of the facts
       giving rise to the claim. Otherwise, the claim shall be deemed waived and
       forever barred even if there is a federal or state statute of limitations which
       would have given more time to pursue the claim.. . .

            NOTICE TO EMPLOYEE: BY SIGNING THIS AGREEMENT, YOU
       ARE AGREEING TO HAVE ANY AND ALL DISPUTES BETWEEN YOU
       AND YOUR COMPANY (EXCEPT THOSE SPECIFICALLY EXCLUDED
       IN SECTION 2 ABOVE AND THOSE OTHERWISE EXCLUDED BY
No. 69306-9-1/3


       APPLICABLE LAW, IF ANY) DECIDED BY BINDING ARBITRATION AND
       YOU ARE WAIVING YOUR RIGHT TO A JURY OR COURT TRIAL™

Tulip worked at SCI until September 2007.

       In December 2007, a former SCI employee on behalf of a national class of SCI

employees, including Tulip, filed a lawsuit in California state court against SCI, Bryant,

et al. v. Service Corp. International, et al.. No. RG 07359593 (Alameda County Super.

Ct.).2 The class action lawsuit alleged wage claims under state law. SCI removed the

lawsuit to the United States District Court for the Northern District of California, Bryant,

et al. v. Service Corp. International, et al.. No. 3:08-cv-01190-SI (2008).

       On January 15, 2008, James Stickle and several other named plaintiffs acting on

behalf of a national class of SCI employees, sued SCI in federal court in Arizona

alleging violation of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. ch. 8,
Stickle, et al. v. SCI Western Market Support Center LP. et. al.. No. 2:08-cv-00083-

MHM (D. Ariz.).3 The lawsuit alleged SCI did not pay the class members for all hours
worked and did not pay overtime at one and one-half times the hourly wage. The suit

also alleged SCI required pre-approval for overtime pay, deducted meal break hours
from pay, and required employees to do "community work" without compensation.
Stickle sought damages in the amount of plaintiffs' unpaid wages. The court




       1 (Some emphasis added) (boldface omitted).
       2The defendants in Bryant were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,
SCI Western Market Support Center LP aka SCI Western Market Support Center Inc., Jane D. Jones,
Thomas Ryan, Gwen Petteway, and Curtis Briggs.
      3The defendants in Stickle were SCI, SCI Western Market Support Center, SCI Eastern Market
Support Center, SCI Houston Market Support Center, SCI Funeral and Cemetery Purchasing
Cooperative Inc., Jane D. Jones, Gwen Petteway, Thomas Ryan, Curtis Briggs, The SCI 401K
Retirement Savings Plan, and Julie Douglas. The plaintiffs also alleged claims under the Employee
Retirement Income Security Act, 29 U.S.C. ch. 18, and the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. ch. 96.
No. 69306-9-1/4


conditionally certified a class action on the FLSA claim and approximately 1,400 SCI

employees opted into the class action lawsuit.

      On December 14, 2009, Tulip filed a "Consent to Become A Party Plaintiff' in the

Stickle lawsuit. The Consent to Become A Party Plaintiff states, in pertinent part:

              I consent to become a "party plaintiff," named, or a representative
      plaintiff in this action, seeking payment of unpaid wages under Federal or
      State law, including overtime wages, and related relief against my
      employer(s) including any individual(s) who may be considered my
      employer(s), on behalf of myself and other former and current employees
      of the employer(s). I am, or was employed by Alderwoods Group, Inc.
       and/or Service Corporation International.

       The parties in the Stickle suit engaged in lengthy discovery on class certification.

SCI propounded interrogatories and took approximately 60 depositions. In response to

the interrogatories, Tulip states he was not paid for all time worked because SCI

       1.     encourag[ed] or required] hourly employees to participate in
              various community activities (church, Lion Club, Rotary
              International, Chamber of Commerce, etc.) so as to increase
              revenue for defendants but not compensating them on an hourly
              basis for such time spent engaging in community work; . ..
       2.     encourag[ed] or required] hourly employees to work by selling pre-
              needs policies after hours,. ..
       3.     encourag[ed] or required] hourly employees to take or teach
              training mandated by defendants outside of their normal work
              hours, ...
       4.     encourag[ed] or required] hourly employees to deduct a full meal
              break from their work hours each day, even when such employees
              either missed their lunch breaks, or were interrupted during their
              lunch breaks,. . .
       5.     require[ed] pre-approv[al] from management for any overtime hours
              worked, and refus[ed] to pay hourly employees for overtime hours
              worked unless the overtime had been pre-approved by
              defendants;. ..
       6.     refus[ed] to allow hourly employees to properly record all overtime
              hours worked, . .. pressuring employees to underreport overtime
              hours worked .. . ; and
       7.     fail[ed] to include all remuneration (such as bonuses and
              commissions) when calculating the regular rate due to hourly
              employees for payment for overtime hours worked.
No. 69306-9-1/5




       After more than two and one-half years of litigation in the Bryant case, the parties

stipulated to dismiss the claims of the out-of-state class members, including Tulip. On

July 22, 2010, the court entered an order of dismissal of the claims of the out-of-state

plaintiffs without prejudice.

       On October 5, 2010, Craig Emmick on behalf of a class of Washington

employees, including Tulip, filed a lawsuit against SCI in King County Superior Court,

Emmick. et al. v. Service Corp. International, et al.. No. 10-2-35204-0 SEA.4 The

Emmick lawsuit against SCI alleged state law claims and sought to recover unpaid

wages and unpaid overtime. SCI removed the Emmick lawsuit to the United States

District Court for the Western District of Washington, Emmick. et al. v. Service Corp.

International, et al.. No. 2:10-cv-02027-MJP (2010).

       On April 25, 2011, the United States District Court for the District ofArizona

granted the motion to decertify the class action in Stickle and entered an order
dismissing "the claims of all opt-in plaintiffs," including Tulip.

       On May 2, 2011, SCI filed a motion to dismiss the Emmick lawsuit. SCI argued
that the plaintiffs failed to state a claim for relief on a number of grounds including
preemption. While the motion to dismiss was pending, the Emmick plaintiffs voluntarily
dismissed their claims. The court entered the order of dismissal on May 17.

       Two days later, Tulip sent SCI a "Demand for Arbitration" under the terms ofthe
Agreement of his claims for unpaid wages, overtime, and other compensation. SCI did
not respond to the demand for arbitration.


        "The defendants in Emmick were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,
SCI Western Market Support Center Inc., SCI Washington Funeral Services Inc., Jane D. Jones, Gwen
Petteway, and Thomas Ryan.
No. 69306-9-1/6


        On November 15, 2011, Tulip filed a "Petition to Compel Arbitration" in King

County Superior Court. Tulip sought to arbitrate claims "for unpaid overtime and other

wages and compensation" under state law.5 SCI filed an answer asserting the claims

were time barred and Tulip waived his right to arbitration by participating in the prior

litigation.

        SCI filed a motion to dismiss arguing as a matter of law Tulip waived his right to

arbitrate and his claims were barred by the statute of limitations. Tulip filed a motion for

summary judgment arguing he was entitled to arbitration. Tulip argued that by

participating in the class action lawsuits, he did not waive the right to arbitrate his state

law wage claims underthe Agreement. In opposition, SCI asserted the undisputed
facts established Tulip waived the right to arbitration by participating in the Bryant,

Stickle, and Emmick class action lawsuits. In support, SCI submitted his consent to

become a party plaintiff in the Stickle lawsuit, the Stickle complaint and docket, Tulip's
answers to interrogatories in Stickle, and the complaint and docket in Emmick.

         The court dismissed the Petition to Compel Arbitration with prejudice. Tulip

appeals.

                                               ANALYSIS

         Tulip argues the court erred by dismissing his petition to compel arbitration. We
review the decision on a motion to compel arbitration and summary judgment de novo.




        5The petition stated that the "relevant statutes and regulations relating to Tulip's claims include"
RCW 49.12.020 (providing that it is unlawful to employ any person "at wages which are not adequate for
their maintenance"), RCW 49.48.010 (regarding authorized deductions and withholdings from pay), RCW
49.52.050 (providing that making false wage records is a misdemeanor), WAC 296-126-021 (regarding
minimum wage calculation for employees receiving commission), WAC 296-126-025 (regarding
deductions from final wages), andWAC 296-126-092 (regarding meal and rest periods).
                                                     6
No. 69306-9-1/7


Hartley v. State. 103 Wn .2d 768, 774, 698 P.2d 77 (1985); Zuver v. Airtouch

Commc'ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004); CR 56(c). Waiver of the

right to arbitrate is governed by federal law. Kinsev v. Bradley, 53 Wn. App. 167, 169,

765 P.2d 1329 (1989). Under federal law, "the ultimate determination of waiver is

reviewed de novo, as a matter of law." Steele v. Lundgren. 85 Wn. App. 845, 850-51,

935P.2d671 (1997).

Waiver of the Right to Arbitrate

       Section 2 of the Federal Arbitration Act, 9 U.S.C, is "a congressional declaration

of a liberal federal policy favoring arbitration agreements, notwithstanding any state

substantive or procedural policies to the contrary." Moses H. Cone Mem'l Hosp. v.

Mercury Constr. Corp.. 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).

Accordingly, a party opposing arbitration bears a " 'heavy burden'" to show waiver of

the right to arbitrate. Steele. 85 Wn. App. at 852 (quoting Fisher v. A.G. Becker Paribas

Incorporation, 791 F.2d 691, 694 (9th Cir.1986)).

       To establish waiver of the right to arbitration, the party opposing arbitration must

prove (1) knowledge of an existing right to compel arbitration, (2) acts inconsistent with

that right, and (3) prejudice to the party opposing arbitration. Kinsev, 53 Wn. App. at

169 (citing Letizia v. Prudential Bache Sec. Inc., 802 F.2d 1185, 1187 (9th Cir.1986)).

" 'The waiver determination necessarily depends upon the facts of the particular case

and is not susceptible to bright line rules.'" Steele, 85 Wn. App. at 853 (quoting Cotton

v. Slone. 4 F.3d 176, 179 (2d Cir.1993)).

       Tulip contends SCI did not meet its heavy burden of showing he waived his right

to arbitration. Tulip contends the state law wage claims are different than the federal
No. 69306-9-1/8


law wage claims asserted in Stickle, and his limited participation in the class action

litigation was not inconsistent with his right to arbitration. SCI argues that Tulip's

attempt to compel arbitration is an improper attempt to relitigate the same claims and

seek the same relief he sought in the prior unsuccessful class actions. SCI argues Tulip

acted inconsistently with the right to arbitrate under the Agreement by participating in

Bryant, Stickle, and Emmick and waiting more than three and one-half years after he

stopped working for SCI in September 2007 to request arbitration.

        1.   Knowledge

        There is no dispute that Tulip signed the agreement to arbitrate in September

2004. "One is presumed to know and understand the contents of documents one

signs." Kinsev, 53 Wn. App. at 171 (citing O'Neel v. Nat'l Ass'n of Sec. Dealers. Inc.,

667 F.2d 804 (9th Cir. 1982)).6 We conclude Tulip was aware of his right to arbitrate

when he signed the Agreement in September 2004.

        2.   Acts Inconsistent with Arbitration

        SCI argues that the undisputed facts establish Tulip acted inconsistently with the

right to arbitrate under the terms of the Agreement by participating in Bryant, Stickle,

and Emmick. Tulip claims he did not act inconsistently with the right to arbitrate his

state law claims because Stickle involved only federal law wage claims brought under

the FLSA, and because his participation in Stickle was limited. Whether a party acts

inconsistently with the right to arbitrate is a fact-specific inquiry. Steele, 85 Wn. App. at

853.


       6Tulip argues for the first time in his reply brief that he was nevergiven a copy of his arbitration
agreement. We do not consider an argument made for the first time in a reply brief. Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issue raised for the first time in a
reply brief is too late to warrant consideration). Further, Tulip presented no evidence to support this
assertion.

                                                      8
No. 69306-9-1/9


        SCI contends the record establishes that there is no difference between the

claims Tulip unsuccessfully litigated in Bryant. Stickle, and Emmick, and the claims he

now seeks to arbitrate. Tulip claims Washington law is more protective and the FLSA

wage claims asserted in Stickle are legally and factually distinct from the state law wage

claims he seeks to arbitrate.

        Tulip's demand for arbitration sought to arbitrate claims "for unpaid overtime and

other wages and compensation." The overtime provisions of the FLSA and the

Washington Minimum Wage Act (MWA), chapter 49.46 RCW, are nearly identical.

Compare RCW 49.46.130(1) (providing that except as otherwise provided, an employer

must pay his employees "one and one-half times the regular rate at which he or she is

employed" for "a work week longer than forty hours") wjth 29 U.S.C. § 207 (providing

that except as otherwise provided, any employer must pay his employees "one and one-

half times the regular rate at which he is employed" for "a workweek longer than forty

hours"). See also Anfinson v. FedEx Ground Package Svs.. Inc., 174 Wn.2d 851, 871,

281 P.3d 289 (2012) (noting MWA is "patterned after the FLSA").7




         7The federal cases Tulip relies on are distinguishable. None of these cases involve a plaintiff
attempting to arbitrate state law claims despite already having litigated federal law claims arising out of
the same facts and requesting the same relief. See MicroStrateav. Inc. v. Lauricia, 268 F.3d 244, 250
(4th Cir. 2001) (employer did notwaive its right to arbitrate its employee'sdiscrimination claim by litigating
an unrelated trade secrets claim in a previous action); Doctor'sAssocs.. Inc. v. Distajo, 107 F.3d 126,133
(2nd Cir. 1997) (franchisor did notwaive arbitration of breach of contract claim by litigating eviction action
where claims did not involve the same "core facts"); Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324,
327 (5th Cir. 1999) (participation in prior litigation of nonarbitrable claims did not waive arbitration).
Further, our cases have repeatedly stated that a court's waiverdetermination is based on the facts and
circumstances of individual cases, not on bright line rules. See Steele, 85 Wn. App. at 853; Hill v. Garda
CL Nw.. Inc.. 169 Wn. App. 685, 691, 281 P.3d 334 (2012) reversed on other grounds by 179 Wn.2d 47,
308 P.3d 635 (2013). Tulip also cites two federal cases for the proposition that litigating a class action is
not inconsistent with later arbitration of state law claims. Beauperthuv v. 24 Hour Fitness USA. Inc., No.
06-715 SC, 2011 WL 6014438, at *5 (N.D. Cal. Dec. 2. 2011V Manskerv. Farmers Ins. Co. of Wash., No.
C10-0511JLR, 2010 WL 3699847, at *3 (W.D. Wash. Sept. 14, 2010). Neither case addresses waiver of
arbitration.

                                                      9
No. 69306-9-1/10


       The FLSA and state law wage claims depend on the same facts and seek the

same relief: unpaid overtime and other wages. Both claims relate to Tulip's

employment with SCI from September 2004 to September 2007. Both claims allege

failure to pay overtime wages, regular wages, and wages for missed break and meal

times. The complaint in Stickle alleged that SCI violated the FLSA by failing to pay its

employees for all hours worked and did not pay time and one-half for overtime hours.

       In the alternative, Tulip argues that even ifthe federal and state law wage claims

are not factually and legally distinct, he did not act inconsistently with his right to

arbitrate by participating in the class actions because his participation was limited. SCI

argues the three and one-half-year delay in seeking arbitration and his involvement in

the class actions in federal court demonstrate that Tulip did not intend to arbitrate his

claims.

       "Waiver occurs when a party seeking arbitration substantially participates in

litigation to a point inconsistent with an intent to arbitrate and this participation results in
prejudice to the opposing party." Morewitz v. W. of England Ship Owners Mut. Prot. &
Indem. Ass'n, 62 F.3d 1356, 1366 (11th Cir.1995). "A party substantially invokes the

litigation machinery when ... it files a lawsuit on arbitrable claims." Lewallen v. Green
Tree Servicing. LLC, 487 F.3d 1085, 1090 (8th Cir. 2007).

          Here, Tulip substantially invoked the litigation machinery. The record establishes

Tulip sought to resolve his wage claims in court rather than seek nonjudicial resolution
through arbitration. Further, Tulip's consent to be a named plaintiff specifically states he
was "seeking payment of unpaid wages under Federal and State law."




                                               10
No. 69306-9-1/11


       Tulip elected to litigate his wage claims, selecting federal court as his first-choice

forum. Tulip affirmatively chose to litigate his wage claims by opting in as a plaintiff to

an FLSA class action, stating, "I consent to become a 'party plaintiff,' named, or

representative plaintiff in this action, seeking payment of unpaid wages under Federal or

State law, including overtime wages, and related relief." Tulip remained a party in

Stickle for one and one-half years, engaging in discovery and failing to raise the right to

arbitrate. Tulip first made his demand for arbitration two days after the plaintiffs in

Emmick voluntarily dismissed their wage claims. Tulip's decision to bring claims in

federal court and to resort to arbitration only after dismissal of his claims is inconsistent

with arbitration. Parlerv. KFC Corp.. 529 F. Supp. 2d 1009, 1015 (D. Minn. 2008);

Welborn Clinic v. Medouist. Inc., 301 F.3d 634, 637 (7th Cir. 2002) ("[W]e do not want

parties to forum shop, taking a case to the courts and then, if things go poorly there,

abandoning their suit in favor of arbitration."). Further, the fact that Tulip did not
demand SCI participate in arbitration until May 2011 provides some evidence that Tulip
elected litigation. River House Dev.. Inc. v. Integrus Architecture, PS, 167Wn. App.
221, 239 n.4, 272 P.3d 289 (2012) ("While the ultimate issue of limitations in arbitration

would have been for the arbitrator, the fact that River House had so far not filed a

demand was some evidence it had elected litigation.").

       Parler is analogous. In Parler. a nationwide class of assistant managers at

Kentucky Fried Chicken (KFC) filed FLSA and state law wage claims against their
employer. Parler, 529 F. Supp. 2d at 1011. The court conditionally certified a national
class ofemployees. Approximately 1,000 employees opted into the FLSA class.
Parler, 529 F. Supp. 2d at 1011. The plaintiffs then asked the court to decertify the


                                              11
No. 69306-9-1/12


single nationwide class, divide the class into several state-level FLSA classes, and

transfer those claims to federal district court. Parler, 529 F. Supp. 2d at 1011. The

court granted the motion to decertify but denied the motion to transfer. Parler. 529 F.

Supp. 2d at 1011.

       Thereafter, over 300 employees sought to arbitrate their claims against KFC.

Parler, 529 F. Supp. 2d at 1011. KFC argued those plaintiffs waived their right to

arbitrate and the court agreed. Parler. 529 F. Supp. 2d at 1014. The court concluded

that the plaintiffs "substantially invoked the litigation machinery" by opting into the

national FLSA class and asking the court to transfer the claims to other courts rather

than to an arbitrator. Parler, 529 F. Supp. 2d at 1014. The court stated the plaintiffs

indicated their first-choice forum was a federal court and "[fjiling a case in federal court

and seeking arbitration only after the litigation goes badly is acting inconsistently with

the right to arbitrate." Parler, 529 F. Supp. 2d at 1014-15.

       Based on the undisputed facts, we conclude Tulip's election to pursue potential

class actions in federal court is inconsistent with arbitration under the terms of the

Agreement.

       3.   Prejudice

       SCI contends that the extent of litigation in federal court and Tulip's delay in

seeking arbitration established prejudiced. Tulip argues SCI did not establish that the

three and one-half-year delay and costs of discovery prejudiced SCI.

       To determine whether the party opposing arbitration was prejudiced, the court

examines the extent of the delay, the degree of litigation preceding the motion to

compel arbitration, the resulting expenses, and other surrounding circumstances.


                                              12
No. 69306-9-1/13


Steele. 85 Wn. App. at 858-59. Prejudice can be shown if a party does not demand

arbitration during pretrial proceedings and engages in inconsistent acts:

       [Wjhen a party fails to demand arbitration during pretrial proceedings, and
       in the meantime engages in pretrial activity inconsistent with an intent to
       arbitrate, the party opposing a motion to compel arbitration may more
       easily show its position has been compromised, i.e., prejudiced.

Kinsev. 53 Wn. App. at 170.

       In Steele, this court identified two types of prejudice and held that an

unnecessary 10-month delay in bringing a demand for arbitration, coupled with

aggressive discovery, satisfied the prejudice requirement:

       "Prejudice can be substantive, such as when a party loses a motion on the
       merits and then attempts, in effect, to relitigate the issue by invoking
       arbitration, or it can be found when a party too long postpones his
       invocation of his contractual right to arbitration, and thereby causes his
       adversary to incur unnecessary delay or expense."

Steele. 85 Wn. App. at 858-598 (quoting Kramer v. Hammond, 943 F.2d 176, 179 (2nd

Cir. 1991)).

       Here, Tulip made no demand to arbitrate for over three and one-halfyears after

his employment ended and never asserted his right to arbitration in Bryant, Stickle, or

Emmick. Tulip demanded arbitration under the Agreement only after his claims were

dismissed in Bryant, Stickle, and Emmick. We conclude SCI met its burden to show the




       8 (Emphasis omitted.)

                                             13
No. 69306-9-1/14


delay in seeking arbitration prejudiced SCI.9

        We affirm dismissal of the petition to compel arbitration.




                                                       SjQsArrfQ** (cy-
WE CONCUR:




         9In a statement ofadditional authority, Tulip cites Biernacki v. Service Corp. International, 533
 Fed. App'x 741 (9th Cir. 2013). Because Biernacki explicitly relies on California state law, not federal law,
we do not address Biernacki.

                                                      14
