Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC383274, Elihu M. Berle, Judge.
Jones Bothwell Dion & Thompson LLP, Elizabeth Thompson and Paul J. Dion for Defendants and Appellants Brendan Vacations, Inc. and TravCorp USA, Inc.
Ross & Morrison, Gary B. Ross and Andrew D. Morrison for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendants, Brendan Vacations, Inc. and TravCorp USA, Inc., appeal from an order denying their petition to compel arbitration. The petition to compel arbitration was filed in response to the complaint filed by plaintiff, Laurie Lyng. Plaintiff alleges she was terminated after she requested accommodations to undergo cancer treatment. We affirm the order denying the petition to compel arbitration.
II. BACKGROUND
The complaint contains causes of action for: violation of the Fair Employment and Housing Act (first); wrongful termination in violation of public policy (second); and intentional and negligent severe emotional distress infliction (third and fourth). Plaintiff alleged that defendants hired her as a business development manager on October 9, 2006. In November 2006, plaintiff was diagnosed with breast cancer, requiring her to undergo surgery on December 26, 2006. Plaintiff later learned that she had to undergo chemotherapy and requested additional time off. On January 6, 2007, defendants fired plaintiff telling her they were “worried about her health” and she could no longer perform her job.
Paragraph 5 of the complaint alleges: “‘Defendant.’ The named defendants and Doe defendants are sometimes hereafter referred to (collectively and/or individually) as ‘defendant.’” In paragraph 4, which is entitled “Doe defendants,” plaintiff alleged in part: “a. At all relevant times, one or more of the defendant(s) was the agent or employee, and/or acted under the control or supervision of, one or more of the remaining defendants, and in doing the acts alleged, acted within the course and scope of such agency and employment, and/or otherwise liable for plaintiff’s damages. [¶] b. At all relevant times there existed, a unity of ownership and interest between two or more of the defendants, such that any individuality and separateness between said defendants has ceased, and defendants are the alter ego(s) of one another. The defendants exercised domination and control over one another, to such an extent that any individuality or separateness of defendants does not, and at all times herein mentioned did not, exist. Adherence to the fiction of separate existence of the defendants would permit abuse of the corporate privilege and would sanction fraud and promote injustice.”
In response to the complaint, defendants filed a petition to compel arbitration of the claims based on two employment applications which were attached as an exhibit to the declaration of Stephannie Beets. Ms. Beets declared that she was the Brendan Vacations, Inc. human resource manager. Plaintiff was employed by Brendan Vacations, Inc. from October 9, 2006, through January 6, 2007, as District Sales Manager responsible for Orange and San Diego Counties. Plaintiff worked out of her home in Brea and reported to Brendan Vacations, Inc.’s Chatsworth office. In connection with her employment, plaintiff signed an employment application electronically and submitted it to Brendan Vacations, Inc. by e-mail. Plaintiff gave Ms. Beets the hand-signed employment application on November 3, 2006. Ms. Beets attached, as an exhibit to her declaration, the electronically transmitted and the hand-signed employment applications.
As part of the employment process, plaintiff initialed an arbitration clause on the two employment applications. The arbitration provision states: “Any dispute or controversy between applicant and Company arising out of, relating to, or in connection with the employment relationship between the parties, or the interpretation, validity, construction, performance, breach, or termination thereof, (with the exceptions of claims for worker’s compensation, unemployment insurance, and any matter within the jurisdiction of the California Labor Commissioner) shall be settled by binding arbitration pursuant to the provisions of the Federal Arbitration Act 9 U.S.C. Section 1 et. seq., if applicable, or the provisions of Title 9 of Part III of the California Code of Civil Procedure, commencing at Section 1280 et. seq., (or any successor or replacement statutes). The arbitration proceedings shall be held in Orange County, California, unless the parties mutually agree upon a different location. The Company and I agree that, except as provided in this application, any arbitration shall be in accordance with and under the auspices and rules of the American Arbitration Association (“AAA”). The Company and I also agree to abide by the additional arbitration provisions as are set out in the Company handbook.” The application states in part: “For the purposes of this application, TravCorp USA, Inc. Trafaigar Tours West, Inc., Contiki U.S. Holdings, Inc., Insight Vacations, Inc., Destination America, Inc. and AAT Kings, Inc. shall hereby be referred to, individually and collectively, as ‘Company’.” (Italics added.) As can be noted, the applications do not refer to Brendan Vacation, Inc. But, the applications do list TravCorp USA, Inc. as the “‘Company’” at the beginning of the two documents.
In opposition to the petition, plaintiff asserted defendants were seeking to enforce an employment application and not an arbitration agreement. Plaintiff filed the employment applications which states in an at-will section in part: “I understand that nothing contained in this application, documents – including personnel policies and handbooks or manuals – or any other information conveyed during an interview creates an employment contract between me and the Company. I also understand such materials or information do not create an employment contract if I am hired by the Company.” Plaintiff argued that this language was a disclaimer that the employment application was a contract. The aforementioned language was in the at-will employment section of the two employment applications which state: “I understand that all employment at the Company is ‘at-will.’ . . . In addition, I understand and agree that if I am employed, my employment is for no definite or determinable period and may be terminated at any time with or without prior notice, at the option of either myself of the Company and that no promises or representations contrary to the foregoing are binding on the Company unless made in writing and signed by me and the Company’s designated representative.”
In addition, plaintiff contended defendants never assumed any obligations under the employment application nor did they execute the documents. According to plaintiff any purported arbitration agreement was procedurally and substantively unconscionable under Armendariz v. Foundation Health Care Psychcare Svcs., Inc. (2000) 24 Cal.4th 83, 114. Plaintiff argued the arbitration clause was a single paragraph offered on a take it or leave it basis without adequate warning that she was waiving her constitutional jury trial right. Plaintiff further argued that the arbitration clause is substantively unconscionable because: it is one-sided and lacks mutuality; it is not binding on the company; and the application specifically states it is not a contract. Plaintiff asserted that these defects could not be cured. Finally, plaintiff argued that Brendan Vacations, Inc. could not enforce the agreement to arbitrate because it is not a party to the arbitration clause. The two applications define the “Company” and Brendan Vacations, Inc. is not listed therein.
On March 18, 2008, the trial court denied defendants’ petition. First, the trial court ruled Brendan Vacations, Inc. is not listed in the employment applications which contain the arbitration agreement. Second, the trial court ruled the employment applications list TravCorp, USA, Inc.; but the evidence filed in support of the petition does indicate that plaintiff was employed by TravCorp, USA, Inc. Plaintiff filed the notice of appeal on April 7, 2008.
III. DISCUSSION
The parties raise a number of issues. We conclude the controlling question is whether there is substantial evidence plaintiff entered into an employment agreement that contains an arbitration clause. In her papers filed in the trial court, plaintiff argued: “The sole document offered by defendants as an ‘arbitration agreement’ is a job application; but the application itself expressly mandates it is not a contract! . . . .[¶] Thus, TravCorps’s own job application is not a contract, and cannot be offered as a binding arbitration contract.” In her brief, plaintiff argues: “[T]he trial court’s ruling should be affirmed, because the sole document offered by defendants as an ‘arbitration agreement’ is nothing more that a job application, unsigned by defendants, which by its express terms is not a contract binding on defendants . . . [¶] [D]efendants never assented to any obligations under the job application: No representative of defendants (or any entity) signed the document; further evidence that the job application would have no binding effect on defendants. As it created no obligations on the part of defendants, and disavowed contractual effect, it is not and cannot be a bilateral ‘agreement’ to arbitrate.” (Original italics and underscore.) We agree with plaintiff—defendants have failed to present substantial evidence that whatever employment contract existed between plaintiff and defendants, it contained an arbitration provision.
A party seeking to compel arbitration has the burden of proving the existence of a valid agreement to arbitrate which covers the dispute at hand. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413-414.) We apply ordinary contract rules in determining whether the parties have formed an enforceable agreement to arbitrate. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170 [“California contract law applies to determine whether the parties formed a valid agreement to arbitrate.”]; Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420 [“General principles of contract law determine whether the parties have entered a binding agreement to arbitrate”].) The goal of contract interpretation is to give effect to the parties’ intentions at the time of contracting. (Civ. Code, § 1636 [“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”]; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1113 [“The overriding goal of contract interpretation is to give effect to the mutual intention of the parties at the time of contracting.”].) Arbitration may not be ordered if there is no substantial evidence of an agreement to arbitrate. (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1106 [“A court may not order arbitration where, as here, there is no substantial evidence of the existence of a valid written agreement to arbitrate.”]; Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357 [“On appeal, if substantial evidence supports the trial court’s determination that a valid agreement to arbitrate exists, an appellate court will affirm that determination.”].)
Here, there is no substantial evidence as to the existence of a written agreement by defendants to arbitrate. The only evidence concerning an agreement to arbitrate are the two employment applications. There is no evidence as to the nature and circumstances of defendants’ acceptance of plaintiff’s two employment applications. There is no evidence as to whether the actual employment agreement is oral or in writing. More to the point, there is no evidence the employment agreement contains an arbitration clause. The opposition to the petition to compel arbitration explicitly asserted the only evidence concerning arbitration were the two applications and there was no proof of the existence of a written agreement to arbitrate. Despite being put on notice as to the gap in their evidence, defendants made no effort to prove they ever accepted plaintiff’s offers to arbitrate as set forth in her two written applications. The only evidence adduced by defendants was plaintiff applied for employment, she was later hired for a particular position, and she worked from her home. There is no evidence as to the substance of their acceptance of her applications and more critically, at the time of contracting, they agreed in writing to arbitrate any disputes. Simply stated, defendants failed to sustain their burden of proof. (See Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 25, fn. 2 [record contained no evidence of written employment agreement].)
We agree with defendants that an arbitration clause in an employment application may be enforceable. No doubt, there is authority for the proposition that an arbitration clause in an employment application may be enforceable. (See Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 109-110; O’Neil v. Hilton Head Hosp. (4th Cir. 1997) 115 F.3d 272, 274; Valdes v. Swift Transp. Co., Inc. (S.D.N.Y. 2003) 292 F.Supp.2d 524, 531.) However, none of these and other decisions involve the issue expressly posited n the trial court and here—the absence of any material evidence as to the employer’s acceptance of the application and the terms of the written employment contract including the arbitration clause. Hence, these decisions are not controlling authority. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265 [“[T]he ‘maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.’”]; Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1278 [“‘an opinion is not authority for a proposition not therein considered’”].)
The order under review is affirmed. Plaintiff, Laurie Lyng, shall recover her costs incurred on appeal from defendants, Brendan Vacations, Inc. and TravCorp USA, Inc.
We concur: ARMSTRONG, J. KRIEGLER, J.