Opinion
B322137
01-12-2024
STEPHANIE DAVIDSON, Plaintiff and Respondent, v. KATHERINE VON DRACHENBERG et al., Defendants and Appellants.
Grodsky, Olecki &Puritsky, Allen B. Grodsky and Tim B. Henderson, for Defendants and Appellants. Hadsell Stormer Renick &Dai, Dan Stormer and Tanya Sukhija-Cohen, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, No. 22STCV02098 Kevin C. Brazile, Judge. Affirmed.
Grodsky, Olecki &Puritsky, Allen B. Grodsky and Tim B. Henderson, for Defendants and Appellants.
Hadsell Stormer Renick &Dai, Dan Stormer and Tanya Sukhija-Cohen, for Plaintiff and Respondent.
MOOR, J.
Plaintiff Stephanie Davidson filed suit against defendants and appellants Katherine Von Drachenberg, Brad Lyon, High Voltage Tattoo, Inc. (High Voltage), and FS Management (collectively "defendants"), raising a number of claims based on her time working at one of Von Drachenberg's companies, High Voltage from 2017 to 2020. Defendants filed a joint motion to compel arbitration, relying upon an arbitration agreement that Davidson had signed in January 2014 when she started working at Kat Von D's Wonderland, Inc. (Wonderland), another of Von Drachenberg's companies. Davidson's employment with Wonderland had ended in late 2014. Afterwards, she had not worked for any of Von Drachenberg's companies until joining High Voltage in 2017. The trial court denied the motion to compel arbitration, reasoning that even if defendants could demonstrate they were "affiliated entities" of Wonderland, the agreement did not cover future employment disputes. Defendants appealed.
On appeal, the parties dispute whether an agreement to arbitrate "[a]ny and all disputes which involve or relate in any way to Employee's employment (or termination of employment) with Company" applies not just to claims relating to the period of employment during which the agreement was signed, but also to a later period of employment occurring more than two years after the first period of employment has ended.
Applying a de novo standard of review to undisputed facts, we conclude the contracting parties only mutually assented to arbitrate disputes arising from the same period of employment during which the agreement was signed. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The relevant individuals and entities
Defendant Von Drachenberg is an artist and the owner of two companies relevant to this litigation. She was the owner of Wonderland, an art gallery, until its dissolution in 2017. She was also the owner of High Voltage, a tattoo business.
Defendant Lyon is the owner and president of defendant FS Management. In 2014, Lyon was the agent for service of process for Wonderland, and FS Management was the business manager for Wonderland and High Voltage. At all times relevant to the litigation, Lyon was the agent for service of process for High Voltage, and FS Management was the business manager for Von Drachenberg.
B. The arbitration agreement and Davidson's employment history
According to the complaint, Davidson "worked for [Von Drachenberg] for a period of time in or around 2013 to 2014 in various roles at [Von Drachenberg's] art gallery Wonderland, which was next to [High Voltage]." Davidson worked as Von Drachenberg's assistant and as the merchandise manager for High Voltage. High Voltage and Wonderland were both closed for restoration and remodeling after a fire in 2014, and Davidson "obtained employment elsewhere." Von Drachenberg asked Davidson to return as High Voltage's general shop manager in 2017, and Davidson agreed. Davidson worked at High Voltage until March 2020, when the store closed temporarily due to statewide Stay at Home orders issued to minimize the transmission of COVID-19. Her employment at High Voltage was terminated on July 8, 2020.
Declarations filed in connection with defendants' motion to compel arbitration provided some additional details about Davidson's employment history and the arbitration agreement. When Davidson began working for Wonderland, she signed various onboarding documents, including an arbitration agreement. The arbitration agreement is a one and a half page document titled "Mutually Binding Arbitration Agreement," signed by Davidson on January 28, 2014. The first paragraph defines Davidson as "Employee" and provides that the Employee "in consideration of my employment with Kat Von D's Wonderland Inc. or any of its affiliated entities (collectively, the 'Company') agree as follows (the 'Agreement')[.]" The relevant language of the arbitration agreement is excerpted below:
"In order to obtain a ruling on future disputes without the costly expense and lengthy delays typically associated with court actions, Employee and Company agree to submit (with exceptions noted below) claims or controversies relating to Employee's employment to final and binding arbitration before a neutral arbitrator and not to any court, as specified below."
"Any and all disputes which involve or relate in any way to Employee's employment (or termination of employment) with Company, whether initiated by Employee or by the Company shall be submitted to and resolved by final and binding, private and confidential arbitration . . . pursuant to the Federal Arbitration Act."
"Employee and the Company understand that by entering into this Agreement, they are waiving any right they may have to file a lawsuit or other civil proceeding relating to Employee's employment with Company, and that Employee and the Company are waiving any right they may have to resolve employment disputes through a jury trial."
"This Agreement is intended to cover all civil claims which relate in any way to Employee's employment with the Company including, but not limited to, arbitrable claims of employment discrimination or harassment on the basis of race, sex, age, religion, color, national origin, sexual orientation, disability and veteran status (including any local, state or federal law concerning employment or employment discrimination), claims based on violation of public policy or statute, and claims against individuals or entities employed by, acting on behalf of, or affiliated with Company ('Claims')."
"This Agreement may be modified or amended only by a writing signed by me and by an officer of Company which specifically references this Agreement."
Davidson's 2014 paychecks identified her employer as Wonderland, Inc. She stopped working for Wonderland in October 2014, and found new employment. Wonderland filed corporate dissolution papers on August 10, 2017.
In August 2017, Davidson was hired by High Voltage in a different position than her previous one with Wonderland. She negotiated new employment terms and was required to sign paperwork, including forms W-4 and I-9, and a form for setting up direct deposit into her bank account. Wonderland no longer existed when she began working for High Voltage, and her paychecks identified her employer as High Voltage.
C. Davidson's Lawsuit and the Court's Denial of Defendants' Motion to Compel Arbitration
In January 2022, Davidson filed the present lawsuit against defendants. It is undisputed that all of Davidson's claims related to the period of her employment at High Voltage, from 2017 to 2020. The first cause of action alleges that all defendants engaged in retaliation in violation of Labor Code section 1102.5. The remaining eleven claims all relate to Davidson's employment at High Voltage, and are alleged against defendants High Voltage and FS Management.
In March 2022, defendants filed a motion to compel arbitration, with the arbitration agreement attached to a declaration by FS Management's financial manager. Davidson opposed the motion, arguing the 2014 arbitration agreement with Wonderland did not govern her claims against defendants, and the arbitration agreement was unconscionable and unenforceable. Defendants' reply brief argued that Davidson's claims were covered by the arbitration agreement, which was neither procedurally nor substantively unconscionable.
After argument on June 16, 2022, the trial court denied defendants' motion to compel arbitration. The court reasoned that the arbitration agreement only applied to Davidson's employment with Wonderland in 2014, and that the dispute over her termination from High Voltage in 2020 fell outside the scope of the arbitration agreement, even assuming that all defendants were affiliates and agents with the ability to enforce the arbitration agreement.
Defendants timely appealed the court's denial of their motion to compel.
DISCUSSION
A. Standard of Review
Because no material facts are in dispute, and the question on appeal is a matter of law, we apply a de novo standard of review. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).)
B. Governing Law
"Both the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) and the [Federal Arbitration Act (FAA)] . . . recognize '" 'arbitration as a speedy and relatively inexpensive means of dispute resolution'" and are intended" 'to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing.'" [Citation.]' [Citations.] The fundamental policy underlying both acts 'is to ensure that arbitration agreements will be enforced in accordance with their terms.'" (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 218 (Vaughn).)
"[A]mbiguities about the scope of an arbitration agreement must be resolved in favor of arbitration." (Lamps Plus, Inc. v. Varela (2019) 587 U.S. __ [139 S.Ct. 1407, 1418] (Lamps Plus).) "There is no public policy, however, that favors the arbitration of disputes the parties did not agree to arbitrate." (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890.) In other words, the policy favoring arbitration" 'does not override ordinary principles of contract interpretation' . . . '[T]he terms of the specific arbitration clause under consideration must reasonably cover the dispute as to which arbitration is requested.'" (Ahern v. Asset Mgmt. Consultants, Inc. (2022) 74 Cal.App.5th 675, 688 (Ahern).)
As the California Supreme Court explained in Pinnacle:"' "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit."' (AT&T Technologies, Inc. v. Communications Workers (1986) 475 U.S. 643, 648; see Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384-385.) In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration. (Volt [Information Sciences, Inc v. Board of Trustees of Leland Stanford Jr. U. (1989) 489 U.S. 468,] 474; see Moses H. Cone [Memorial Hospital v. Mercury Constr. Corp. (1983) 460 U.S. [1,] 24.) [¶] In California, '[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.'" (Pinnacle, supra, 55 Cal.4th at p. 236.) The court's role on a motion to compel arbitration is "limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." (Chiron Corp. v. Ortho Diagnostic Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.)
"' "An essential element of any contract is the consent of the parties, or mutual assent." [Citation.] (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270.) Further, the consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) "Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings." [Citation.]' [Citation.]" (Esparza v. Sand &Sea, Inc. (2016) 2 Cal.App.5th 781, 788 (Esparza).)
"Although there is a general policy favoring arbitration, a party cannot be compelled to accept arbitration of a controversy which they have not agreed to arbitrate." (Garcia v. Expert Staffing West (2021) 73 Cal.App.5th 408, 413 (Garcia); see Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 777.) "In determining the scope of an arbitration clause, '[t]he court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.'" (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744; Ahern, supra, 74 Cal.App.5th at 675, 687; Civ. Code, §§ 1647, 1648.) "Without a clear agreement to arbitrate a controversy, courts will not infer that the right to a jury trial has been waived." (Garcia, at p. 413.)
C. Analysis
The question on appeal is not whether Davidson and Wonderland entered into a valid arbitration agreement, but rather whether the current dispute between Davidson and defendants falls within the scope of that agreement. Davidson and Wonderland agreed to arbitrate "[a]ny and all disputes which involve or relate in any way to Employee's employment (or termination of employment) with Company." In the agreement, Company was defined as "Kat Von D's Wonderland Inc. or any of its affiliated entities." To answer the question on appeal, we identify Davidson's and Wonderland's mutual intent, based on the reasonable meaning of the phrase, "Employee's employment (or termination of employment) with Company." (See Esparza, supra, 2 Cal.App.5th at p. 788.)
Because we conclude the arbitration agreement does not apply to the current dispute, there is no need to consider the parties' arguments about whether the arbitration agreement is unconscionable.
Defendants contend that the plain language of the agreement applies to the circumstances here, where Davidson's original employment with Wonderland ended, and then more than two years later, she took a new position with High Voltage. In support of the view that the arbitration agreement applies regardless of any breaks in employment, defendants note that the agreement is "unbounded with respect to the timeframe it covers" and has no expiration date. They also emphasize the agreement expressly applies to "future disputes," which indicates the parties intended for the agreement to be "all-inclusive and to bind them moving forward." As additional supporting language, defendants point to the definition of "Company," which includes affiliated entities. They contend, "[e]mployment by more than one entity could reasonably mean employment at the same time and it could also mean employment by one entity first, such as Wonderland, and then later another affiliated entity, such as High Voltage and Von Drachenberg. That is precisely what occurred here." Finally, defendants argue that to the extent there is any doubt about whether Davidson's claims fall under the arbitration agreement, this court should favor arbitration.
We are not convinced by any of these arguments. Instead, in the absence of other language or circumstances to support a different construction, we conclude that reasonable meaning of the term "employment" means the contracting parties intended the arbitration agreement to apply only to claims arising from or relating to the current period of employment, not to subsequent periods following a voluntary or involuntary termination of employment. First, the agreement repeatedly refers only to a single period of "employment," and contains no language to suggest that it will cover additional, different periods of employment. It does not expressly state that it covers a situation where Davidson leaves Wonderland and is re-hired. Second, while the agreement does not include an expiration date, the language conveys that it covers disputes arising up to and including the end of a single period of employment, i.e., it covers disputes relating to Davidson's "employment (or termination of employment)." Notably, the agreement's language refers to "termination of employment" as a singular event, and it does not include the possibility of multiple "terminations" of employment. Third, the reference to "future disputes" is not a reference to "future employments." The reasonable construction of the term "future disputes" is that the agreement applies to disputes, whenever brought, even after the termination of employment. But that phrase does not supplant the limitation in the agreement, previously described, that arbitration applies only to a singular period of employment. Last, because general principles of California contract law lead us to conclude that the reasonable meaning of the phrase "Employee's employment (or termination of employment) with Company" is limited to a single period of employment, there is no ambiguity that must be resolved in favor of arbitration.
As we explain, our reading of the arbitration agreement here is consistent with California contract law, and other federal and state cases do not persuade us to alter our conclusion. In Vaughn, supra, 87 Cal.App.5th 208, the court explained, "it is clear that 'employment' as used throughout the Arbitration Provision and specifically in the phrase 'arising from or relating to your employment' refers to the period of direct, contractual employment, not prior periods during which Plaintiffs were employed by staffing agencies and assigned to work at Defendant's factory." (Id. at pp. 219-220.) While the facts in Vaughn were different, we find the court's explanation of the reasonable meaning of the term "employment" very useful. The court rejected defendant's argument that an arbitration agreement included claims raised by plaintiffs pertaining to a different time frame when plaintiffs were working for defendant, but as employees of a staffing agency, rather than direct employees of defendant. (Id. at pp. 219-223.)
Similarly, in Garcia, the court concluded "that the arbitration clause between a job applicant and her prospective employer does not apply to disputes between the applicant and her former employers based on the existence of a business relationship between the prospective employer and the applicant's past employers." (Garcia, supra, 73 Cal.App.5th at pp. 410, 413.) In Garcia, the plaintiff had worked at two foodservice companies in 2017, two years before unsuccessfully applying to work for defendant Expert Staffing West. The application package included an arbitration agreement requiring plaintiff to arbitrate "any dispute between Employee and the Company relating to or arising out of employment or the termination of the Employee," and defining" 'the Company' as 'Expert Staffing West and all related entities, including entities where employees are sent to work.' (Italics added.)" (Id. at p. 411.) Garcia later joined a class action lawsuit against all three companies, with her specific allegations stemming from her work in 2017. The companies moved to compel arbitration based on the 2019 arbitration agreement, but both the trial and appellate courts concluded that no valid agreement applied to the matter in dispute. "Although there is a general policy favoring arbitration, a party cannot be compelled to accept arbitration of a controversy which they have not agreed to arbitrate." (Id. at p. 413.) The court also rejected defendants' arguments that they were third party beneficiaries of the arbitration agreement, or able to enforce the agreement as agents of contracting parties. (Id. at pp. 415-416.)
In Revitch v. DIRECTV, LLC (9th Cir. 2020) 977 F.3d 713, 716-718 (Revitch), the Ninth Circuit also applied California law to conclude that an arbitration agreement between the plaintiff and his wireless services provider (AT&T) did not constitute an agreement to arbitrate a later consumer protection claim against a television company (DirectTV). DirectTV argued it could enforce the arbitration agreement because sometime after the agreement was signed by plaintiff, DirectTV became an "affiliate" of AT&T, and the agreement applied to AT&T and its affiliates. (Id. at p. 715.) The Ninth Circuit summarized the relevant California law as follows: "In California, '[a] contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting.' Cal. Civ. Code § 1636. We normally determine the mutual intention of the parties 'from the written terms [of the contract] alone,' so long as the 'contract language is clear and explicit and does not lead to absurd results.' Kashmiri v. Regents of Univ. of Cal. 156 Cal.App.4th 809, [831] (2007); see also Cal. Civ. Code §§ 1638 ('The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.'), 1639 ('When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . . ')." (Revitch, supra, 977 F.3d at p. 717.) The court concluded it would be absurd to construe the contract language to include entities that did not become affiliated with AT&T until after the agreement was signed, noting that if the language had made specific reference to the possibility of future affiliates, the conclusion might have been different. (Id. at p. 718.)
In footnote 2 of the majority opinion, the court discusses the added layer (present here as well) of having a non-signatory affiliate seeking to enforce the agreement. For our purposes, because all the affiliated parties were already in existence, we do not delve into the intricacies of whether defendants were in contractual privity with plaintiff merely by inclusion as affiliates, or whether they are seeking to enforce the agreement as agents or third party beneficiaries. (See, e.g., Jarboe v. Hanlees Auto Group (2020) 53 Cal.App.5th 539, 549.)
The Revitch court discussed the U.S. Supreme Court's recent holding in Lamps Plus "that the FAA preempts California's contra proferentem rule-requiring ambiguities in a contract to be construed against the drafter-when the rule is used 'to impose class arbitration in the absence of the parties' consent.'" (Revitch, supra, 977 F.3d at p. 718, quoting Lamps Plus, supra, 587 U.S. __ [139 S.Ct. at pp. 1417-1418].) As both the Ninth Circuit and the U.S. Supreme Court pointed out, the contra proferentem rule is only triggered "after a court determines that it cannot discern the intent of the parties." (Lamps Plus at p. 1417; Revitch at p. 718.) Here too, defendants contend that to the extent we find the contract language ambiguous, we must resolve any ambiguity in favor of arbitration. However, because we can ascertain the parties' mutual intent using established California contract law, we do not find the contract to be ambiguous, and so there is no need to "tip the balance" one way or the other.
Perez v. Discover Bank similarly concluded it would be absurd to require arbitration of plaintiff's claims against defendant Discover Bank in connection with a consolidation loan, based solely on an agreement between plaintiff and a different bank, including its successors and assigns, to arbitrate any claims arising out of a different loan eight years later. (Perez v. Discover Bank (9th Cir. 2023) 74 F.4th 1003, 1006, 1010-1011.) As the Perez court explained, "just as the Revitch plaintiff could not have anticipated that his cell phone agreement would bind him to arbitration for claims accruing seven years later in an unrelated dispute, Perez 'could not reasonably have expected that [s]he would be forced to arbitrate [the] unrelated' claims that Discover discriminated against her eight years later when it denied her application for a 'new, distinct loan.'" (Perez, supra, 74 F.4th at p. 1010.)
Defendants here point to the arbitration agreement's reference to "future disputes" and its requirement that any modifications be made by signed writing to argue that the parties intended the agreement to bind them moving forward, absent any effort to terminate the agreement. While this argument is superficially supported by the holding in Reigelsperger v. Siller (2007) 40 Cal.4th 574, we find the case to be distinguishable. In Reigelsperger, a patient signed an arbitration agreement during his first visit to a chiropractor and did not return until two years later. The second visit was for treatment on a different part of his body, and that later visit resulted in a lawsuit. While there was conflicting information about whether doctor and patient discussed further treatment during the first visit, their subjective intents were irrelevant. The court pointed to language in the agreement that it was" 'intended to bind the patient and the health care provider . . . who now or in the future treat[s] the patient ....' (Italics added.)" (Id. at p. 579.) Regardless of whether the patient intended to return to the chiropractor at the time he signed the arbitration agreement, the contract language provided that if he did return, the arbitration provision would apply. (Id. at pp. 579-580.) Although the Court of Appeal reasoned that the agreement's reference to future treatments could not reasonably be construed to bind the parties in perpetuity, the California Supreme Court reversed, reasoning that arbitration agreements that do not specify a term of duration are terminable at will after a reasonable time has elapsed, and the patient had not tried to terminate. (Id. at p. 580.)
Defendants' reliance on Reigelsperger is misplaced. Unlike the reference to future treatments in the arbitration agreement at issue in Reigelsperger, the arbitration agreement here refers not to future periods of employment, but rather to "future disputes," before agreeing to submit "claims or controversies relating to Employee's employment" to arbitration. We also decline to apply the same reasoning here based on the difference between a medical treatment relationship, as compared to an employment relationship. In a medical setting, it is reasonable to contemplate that a patient will return for additional visits, and the point at which the relationship is terminated or resumed is not as clear as in an employment relationship with a readily identifiable termination date.
The parties debate extensively which out-of-state authorities we should look to in deciding whether the 2014 arbitration agreement applies to the current employment dispute. However, because our interpretation of the contract is governed by California law, and because the out-of-state authorities are roughly split on the question of whether a break in the employment relationship makes the arbitration agreement inapplicable to a subsequent term of employment, we do not find the out-of-state cases helpful to our analysis. We note, however, that the out-of-state cases cited by defendants are not particularly persuasive, considering that defendants argue that the trial court here incorrectly relied upon a federal case out of Mississippi (Walker v. Red Lobster Restaurants, LLC (S.D.Miss. June 30, 2015, No. 3:14-CV-449) 2015 U.S. Dist. Lexis 84922, at p. *8 [denying motion to compel arbitration where arbitration agreement did not expressly state it applied to claims that may arise after employment ended or in the event the employee was rehired]; compare, Armont v. K12 (M.D. Fla. Dec. 26, 2019, No. 3:19-cv-334-J-34MCR) 2019 U.S. Dist. Lexis 225573, at *14-15, 28; Ryan v. LP Fort Meyers, LLC (M.D. Fla. July 8, 2014, No. 2:14-cv-231-FtM-38CM) 2014 U.S. Dist. Lexis 92537, at *3-4 [both applying Florida contract law].)
Some of the out-of-state cases Davidson identified in her respondent's brief underscore our conclusion that a bare reference to "Employee's employment," without any mention of the possibility of subsequent periods of employment cannot reasonably be understood to encompass those later periods of employment. Several cases enforce arbitration agreements on claims arising after a break in employment, but the agreement language expressly states it would survive termination of the Employee's employment. (See, e.g., Anderson v. Waffle House, Inc. (E.D. La. 2013) 920 F.Supp.2d 685, 693 [granting motion to compel arbitration for claims arising from plaintiff's reemployment where arbitration agreement contained express language that it "shall survive termination of my employment"]; Gillian v. Cowabunga, Inc., (N.D. Ala. May 30, 2018, No. 2:17-CV-1389) 2018 U.S. Dist. Lexis 89812, at p. *9-10 [agreement stated it "shall survive the termination of Employee's employment"].) The absence of such language in the agreement signed by Davidson reinforces our interpretation of the agreement as limited to the initial period of employment only through her termination.
Defendants argue that the trial court improperly ignored evidence supporting their interpretation of the arbitration agreement, specifically a declaration stating that Davidson was not asked to sign a new arbitration agreement because she had already done so in 2014. However, "unexpressed subjective intentions" are not considered in determining whether parties reached mutual assent at the time of contracting. (Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 970; see also Reigelsperger, supra, 40 Cal.4th at pp. 579-580.)
Ultimately, common sense leads us to conclude that the outward manifestation of the parties' mutual assent here did not mean that the parties intended an arbitration agreement signed at the beginning of employment with one employer to extend some two years after termination to also apply to an entirely separate term of employment with a separate but related employer. Here, not only was there a more than two-year gap in between Davidson's two stints of employment, but also the original contracting party, Wonderland, ceased to exist before Davidson started her second stint of employment with High Voltage, a different but related corporate entity.
DISPOSITION
The order denying the motion to compel arbitration is affirmed. Plaintiff Stephanie Davidson is awarded her costs on appeal.
We concur: RUBIN, P. J., KIM, J.