Opinion
G053654
11-14-2017
T3 MOTION, INC., Plaintiff and Respondent, v. WILLIAM TSUMPES et al., Defendants and Appellants.
Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Appellants and Defendants. LKP Global Law, Joseph H. Park, Albert T. Liou, Victor T. Fu; Levene, Neale, Bender, Yoo & Brill, Beth Ann R. Young, Monica Y. Kim and Carmela T. Pagay for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00817371) OPINION Appeal from an order of the Superior Court of Orange County, Frederick P. Horn, Judge. Affirmed. Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Appellants and Defendants. LKP Global Law, Joseph H. Park, Albert T. Liou, Victor T. Fu; Levene, Neale, Bender, Yoo & Brill, Beth Ann R. Young, Monica Y. Kim and Carmela T. Pagay for Plaintiffs and Respondents.
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INTRODUCTION
T3 Motion, Inc. (T3) brought this lawsuit against its former CEO, William Tsumpes, and entities sued as his alter egos (collectively Defendants), for claims arising out of alleged acts of malfeasance. Defendants moved to compel arbitration based on an arbitration provision in a written employment agreement he had signed. The trial court denied the motion to compel arbitration based on a finding there was no mutual assent to an employment agreement with an arbitration provision. Defendants appeal from the order denying his motion to compel arbitration, and we affirm.
Defendants Lender Collections, LLC, Seaguard Electronics, LLC, Seaguard Technologies, LLC, and T Energy were sued as the alter egos of Tsumpes.
Resolution of this appeal comes down to application of the standard of review. The issue whether the parties in this case had agreed to arbitrate disputes was intensely factual and hotly contested. In connection with Defendants' motion to compel arbitration, the parties submitted declarations and other evidence that often were in sharp conflict about what occurred at a T3 board of directors meeting and about subsequent facts and events related to Tsumpes' employment relationship with T3. The trial court, which sat as the trier of fact, considered the declarations and other evidence, assessed witness credibility, and resolved conflicts in favor of finding lack of mutual assent. Under the relevant standard of review, we defer to the trial court's resolution of factual disputes, accept the trial court's credibility determinations, draw all reasonable inferences in favor of the order, and presume the trial court impliedly, if not expressly, found all facts and made all credibility determinations necessary to support the order.
Here, the trial court's express and implied findings are supported by substantial evidence. Mutual assent is an essential element to contract formation. Because, as the trial court found, there was no mutual assent to an employment agreement with an arbitration provision, T3 cannot be compelled to arbitrate, and we affirm the order denying the motion to compel arbitration.
BACKGROUND FACTS
The facts are taken from T3's complaint and the evidence submitted in connection with the motion to compel arbitration.
I.
The Parties
T3 designs, manufactures, and markets personal mobility vehicles, including electric stand-up vehicles similar to those of its competitor, Segway. Ki Nam founded T3 in 2006 and was chairman of its board of directors and CEO until 2012. In early 2012, Nam was replaced as CEO by Rodney Keller, who served in that position for only one year before leaving to become CEO of Segway.
Tsumpes is an entrepreneur who has worked in the technology industry for more than 35 years. In 2012, Nam contacted Tsumpes to ask him to invest in T3. After speaking with Nam, Tsumpes purchased about $500,000 of T3 Motion's stock on the open market. In November 2012, Tsumpes joined with nine other investors to loan T3 an additional $4.3 million in an attempt to give Keller, then CEO, an opportunity to turn the company around. Tsumpes was appointed to T3's board of directors in December 2012.
Keller resigned from his position as T3's CEO in February 2013. At about the same time, T3's board of directors met to discuss Keller's resignation and filling the vacancy left by that resignation. At this meeting, Tsumpes agreed to act as T3's CEO at an annual salary of $50,000. Nam was ready and willing to take on the job of CEO if Tsumpes had not agreed to do so.
T3's complaint alleged the T3 board of directors approved and Tsumpes accepted an annual salary of $50,000. Nam stated in his declaration that he could not recall a discussion of a $50,000 salary and that Tsumpes volunteered to act as T3's CEO "without further compensation given his existing equity interest in T3." --------
II.
Tsumpes' Proposed Offer of Employment
Tsumpes did not have a written employment agreement with T3 when he was appointed its CEO. In September 2013, Tsumpes prepared a two-page proposed employment offer in letter form (the Offer Letter) and e-mailed it to the three other members of T3's board of directors. The Offer Letter proposed an annual salary of $400,000 with "cashless" options amounting to 10 percent of T3's outstanding shares and warrants.
Two provisions in the Offer Letter are of particular importance. The first is a provision stating "[y]ou will be required to sign a mutually agreed upon Employment Agreement for a minimum term of 2 years which shall be modeled from the Company's previous agreements with prior employees hired for the position of CEO." The second is a provision stating "[a]s a condition to your employment you will be required to sign the Company's Arbitration Agreement, pursuant to which you and the Company will agree to arbitrate any disputes which may arise." The employment agreement with Keller (the prior CEO) included an arbitration provision requiring "[a]ll claims, disputes and controversies arising out of, or related to" the agreement "be submitted to final and binding arbitration."
Over the next several days, T3 board members exchanged e-mails regarding the Offer Letter. On September 9, Tsumpes sent out an e-mail telling the board that investors "continue to press me to get a long term employment agreement completed," which the investors viewed as a "high priority" before they would invest additional capital. Tsumpes separately told Nam by text message, "I'm not putting more money in here when I don't even have an agreement." Nam responded by saying "[t]hat's why I kept pushing for it [a] few month[s] ago," and mentioning that board member Steven Healy is the chair of the compensation committee. T3 board member David Snowden vehemently objected to paying Tsumpes an annual salary of $400,000 with stock options and expressed his opposition to approving a "long term deal" for him. A few days later, Healy sent an e-mail to Tsumpes, Nam, and Snowden stating: "As I understand, we are prepared to move forward with approving your contract after appropriate board discussion and vote. When can we schedule this so it's behind us, you're properly compensated, and [we] can get on with the business of revitalizing T3 Motion?"
III.
The September 9, 2013 Board of Directors Meeting
The T3 board of directors (Tsumpes, Nam, Healy, and Snowden) conducted a telephonic board meeting on September 13, 2013 to address Tsumpes' employment agreement. There are differing versions of what happened at this meeting. Tsumpes stated in a declaration that at the September 13 meeting the board of directors had voted unanimously to approve an employment agreement on the terms set forth in the Offer Letter. Healy stated in a declaration that the board had approved an employment agreement based on the terms of the Offer Letter. Snowden stated in a declaration that he was "certain" he did not vote to approve an employment agreement and had not seen the Offer Letter. Nam stated in a declaration that, although he could not remember "specific details" of the meeting, he was "certain" he "did not vote to approve any employment agreement that would have paid Mr. Tsumpes a $400,000 salary per year in addition to cashless options." Nam stated "[s]pecifically, neither I nor the Board ever approved of or authorized making the employment offer, including the proposed arbitration clause."
Minutes of the board of director's meeting were taken by Ann Gomes, T3's senior staff accountant and signed by Tsumpes. The following entry appears in the minutes: "Steven Healy made a motion to approve William Tsumpes' new employment agreement. Ki Nam seconded the motion. All remaining board members voted in agreement to approve the contract. The contract will be submitted for legal approval . . . next week." Tsumpes stated in his declaration that he circulated the minutes to the board members before placing them in the corporate minute book. Nam and Snowden stated in their respective declarations that they never received the minutes for review and approval and that the minutes are inaccurate because neither of them voted to approve an employment agreement with Tsumpes.
IV.
Tsumpes' Removal as CEO of T3
How Tsumpes fared as T3's CEO depends on whose version of the facts is considered. According to Tsumpes, he completely turned T3 around, worked diligently for no pay, personally loaned $150,000 to T3 so it could pay its employees, invested his own money in the company, secured millions of dollars in outside financing, settled lawsuits against the company, settled more than $4 million of the company's delinquent obligations, and increased sales and productivity. But according to Nam, "it became quickly evident that Mr. Tsumpes lacked the ability to properly function as a CEO of any company, including T3, as he had no respect for the Board's role and, instead, did what he wanted, how he wanted, and when he wanted without regard to corporate formalities." Snowden resigned from the T3 board of directors due in large part to "frustrations with working with Mr. Tsumpes."
In January 2015, some T3 stockholders initiated a lawsuit in the Delaware Court of Chancery seeking a declaration of the validity of actions taken by written consent of the holders of a majority of T3 stock. The plaintiffs in the Delaware lawsuit alleged that Tsumpes had refused to accept the decision by the majority stockholders to appoint three new members to the T3 board of directors. The Delaware Court of Chancery issued a temporary restraining order (TRO) limiting Tsumpes' ability to take certain actions pending resolution of the lawsuit.
T3 asserted that, shortly before and after issuance of the TRO, Tsumpes took several improper actions which included transferring $2.65 million from T3's bank account to his personal bank account, writing a check to himself for $750,000, making about $1.5 million in payments to himself, and giving himself unauthorized pay raises.
In July 2015, the Delaware Court of Chancery issued a final order and judgment confirming the removal of Tsumpes as T3's CEO and from T3's board of directors. Just before entry of the judgment, Tsumpes e-mailed to T3's lawyer a 14-page employment agreement (the Written Agreement) bearing Tsumpes' signature. Section 18.7 of the Written Agreement provides (with exceptions not applicable here) that "[a]ll claims, disputes and controversies" relating to the employment agreement and Tsumpes' employment relationship with T3 "shall be submitted to final and binding arbitration."
Tsumpes claimed he signed the Written Agreement on his own behalf and on behalf of T3 on October 13, 2013, just after the board minutes were approved. T3 asserts, and the trial court found, that Tsumpes did not sign the Written Agreement until June 2015, just before judgment was entered in the Delaware lawsuit.
MOTION TO COMPEL ARBTRATION
In October 2015, T3 initiated this lawsuit against Defendants and asserted claims for breach of fiduciary duty, fraud and constructive trust, conversion, constructive trust, and declaratory relief. The complaint alleges that Tsumpes abused his position as T3's CEO by making $1.5 million in payments to himself from T3's bank accounts and making unauthorized wire transfers to himself of $2.65 million from T3's funds.
Defendants brought a motion to compel arbitration based on section 18.7 of the Written Agreement. In support of the motion, he submitted declarations from himself and Healy, attached to which were various exhibits. T3 filed opposition to the motion to compel arbitration and submitted declarations from Nam, Snowden, Megan Bell (a computer forensic analyst), and Noel Cherowbrier (T3's new CEO).
The trial court denied the motion for arbitration with reasons stated in a minute order. The trial court concluded there was lack of mutual assent to a written employment agreement with an arbitration provision. The court found: "Defendant Tsumpes seeks to enforce the arbitration clause of the Employment Agreement (Exhibit J). Paragraph 18.7 stated that 'All claims, disputes and controversies arising out of, or related to the Agreement, the . . . Executive's employment with the Company or the separation of th[at] employment shall be submitted to final and binding arbitration . . . .' This agreement was purportedly executed on 10/13/13. William Tsumpes allegedly signed it on behalf of himself and on behalf of T3 Motion, Inc. as the CEO."
In concluding there was no mutual assent, the court found: "Although the concept of the Employment Agreement may have been approved at the Board meeting on 9/13/13, the Agreement had not been reduced to writing at that time. There was no reference to an arbitration agreement or its exact language. Tsumpes failed to meet the burden to demonstrate contemporaneous mutual assent to the written contract to arbitrate. [¶] As recited in the Declaration of Noel Cherowbrier from 7/16/14 to 9/14/14 the Employment Agreement did not appear (Exhibits G to M). The first evidence of the purported written agreement was found in 6/24/15 in the Delaware litigation. (Exhibit O). Metadata for the pdf reflected that it was created on 6/14/15, long after it was reportedly signed. (Exhibit T & U). Forensic analysis supported [the] theory that the purported written agreement was of recent origin prepared for the Delaware litigation."
DISCUSSION
I. Relevant Law, Burden of Proof, and
Standard of Review.
A written agreement to arbitrate is enforceable. (Code Civ. Proc., § 1281; Sparks v. Vista del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1517 (Sparks).) A court's first task when considering a motion to compel arbitration is to determine whether the parties have entered into an agreement to arbitrate their disputes. (Sparks, supra, at pp. 1517-1518.) "Because arbitration is a contractual matter, a party that has not agreed to arbitrate a dispute cannot be compelled to do so." (Id. at p. 1518.)
A party seeking to compel arbitration has the burden of proving the existence of a valid agreement by the preponderance of the evidence, and a party opposing arbitration has the burden of proving by a preponderance of the evidence any defense to arbitration. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) In the summary proceeding on a motion to compel arbitration, "the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; see Espejo v. Southern California Permanente Group (2016) 246 Cal.App.4th 1047, 1057-1058.)
If the trial court's order denying a motion to compel arbitration is based on a decision of fact, then the substantial evidence standard applies; if the order is based on a decision of law, then the de novo standard applies. (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 686; Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) "'[W]e review the trial court's order, not its reasoning, and affirm an order if it is correct on any theory apparent from the record.'" (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 571, fn. 3.)
"[T]he applicable standards of appellate review of a judgment based on affidavits or declarations are the same as for a judgment following oral testimony: We must accept the trial court's resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence." (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923; see Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 286 ["We accept the trial court's credibility determinations and do not reweigh the evidence on appeal"]; Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 868, fn. 1 ["our standard of review is substantial evidence, with due deference to the trial court's resolution of factual conflicts, regardless whether the evidence is oral or documentary"].)
We also must accept the trial court's resolution of conflicting inferences arising from the evidence. Thus, "[i]f the evidence gives rise to conflicting inferences, one of which supports the trial court's findings, we must affirm." (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 867.)
II.
Substantial Evidence Supports the Trial Court's Finding
of Lack of Mutual Assent to an Agreement to Arbitrate.
Here, the trial court's first task was to determine whether T3 and Tsumpes had entered into a written agreement to arbitrate their disputes. (Sparks, supra, 207 Cal.App.4th at pp. 1517-1518.) Defendants had moved to compel arbitration based on section 18.7 of the Written Agreement and, on appeal, he contends the Offer Letter also serves as a basis on which to compel arbitration. The trial court found there was no mutual assent in a written contract to arbitrate.
General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate. (Pinnacle, supra, 55 Cal.4th at p. 236.) Mutual assent of the parties is an essential element of a contract. (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270.) "Mutual assent usually is manifested by an offer communicated to the offeree and an acceptance communicated to the offeror." (Id. at pp. 270-271.) "'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.'" (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 173.) A. Mutual Assent Was Not Given at the September 13, 2013 Board Meeting.
The trial court's finding of lack of mutual assent is supported by substantial evidence. At the telephonic board of directors meeting on September 13, 2013, Tsumpes, Healy, Nam, and Snowden addressed the matter of Tsumpes' employment relationship with T3. Tsumpes made an offer by means of the Offer Letter, which Tsumpes claimed to have distributed by e-mail. The Offer Letter included a provision conditioning employment on Tsumpes' signing T3's arbitration agreement. In his declaration submitted in opposition to the motion to compel arbitration, Snowden stated that he was "certain" he did not vote to approve an employment agreement and that he had not seen the Offer Letter. Nam stated in his declaration that, although he could not remember "specific details" of the meeting, he was "certain" he "did not vote to approve any employment agreement that would have paid Mr. Tsumpes a $400,000 salary per year in addition to cashless options." Nam also stated, "[s]pecifically, neither I nor the Board ever approved of or authorized making the employment offer, including the proposed arbitration clause."
The declarations of Tsumpes and Healy are in sharp conflict with those of Snowden and Nam. Under the standard of review, we accept the trial court's implied finding that Snowden and Nam were more credible than Tsumpes and Healy. (Baugh v. Garl (2006) 137 Cal.App.4th 737, 744.) Also, under the standard of review, we defer to the trial court's resolution of the conflict in the declarations in favor of finding that the T3 board of directors "may have" approved the "concept" of an employment agreement but did not agree to an arbitration agreement and did not reduce their contract to writing.
Defendants contend the trial court expressly found the parties approved an employment agreement at the September 13, 2013 board of directors meeting. The trial court found, "[a]lthough the concept of the Employment Agreement may have been approved at the Board meeting on 9/13/13, the Agreement had not been reduced to writing at that time." This finding could be read to mean (1) the T3 board of directors did agree at least in concept to an employment agreement with Tsumpes but did not agree to specific terms or (2) the T3 board of directors did not agree to an employment agreement with Tsumpes, but even if it had, the agreement was not reduced to a writing with an arbitration provision. Under either reading, the trial court found no mutual assent to arbitrate employment disputes.
The minutes of the September 13, 2013 board meeting have an entry that the T3 board of directors voted to approve "the contract" with Tsumpes, and "the contract" would be submitted for legal approval the following week. But Nam and Snowden stated in their respective declarations that they never received the minutes for review and approval and that the minutes are inaccurate because neither of them voted to approve an employment agreement with Tsumpes. Minutes of a board of directors meeting are prima facie, but not conclusive, evidence of what they show, and parol evidence may be received to determine what actually took place at the meeting. (Cox v. First Nat. Bank (1935) 10 Cal.App.2d 302, 309.) The trial court impliedly found that Nam and Snowden were more credible than Tsumpes, who declared he had distributed the minutes to the board members, and that the minutes were not accurate on the issue of an employment agreement.
Even if accurate, the minutes of the board of directors meeting do not identify or describe "the contract" that had been approved by the board and sent for legal approval. Evidence showed that Tsumpes never e-mailed the Written Agreement to for legal approval, and no evidence was presented that anybody else did so. B. There Was No Mutual Assent to the Written Agreement.
Because substantial evidence supported a finding there was no mutual assent to an employment agreement that would include an arbitration provision, the Written Agreement, which bears Tsumpes' signature, has no effect. In addition, the trial court found the Written Agreement was not produced until June 2015 and was prepared for the Delaware litigation. Substantial evidence supported that finding. On August 4 and 20, and September 8, 2014, Chris Nelson (a representative of a T3 investor) e-mailed Tsumpes to request, among other things, a copy of his Written Employment agreement. There is no evidence that Tsumpes ever provided one.
One of Nelson's September 8 e-mails reads: "Bill, have you found anything on your employment agreement? We really need to resolve this matter soon." On that day, Tsumpes replied, "[w]e addressed this earlier with the auditors and they found no issues related to my acceptance of the agreement in Q4 so as not to impact the earlier periods." Although Defendants argue that Tsumpes' responses show he had signed the Written Agreement, the e-mail does not reflect what agreement he accepted.
On November 19, 2013, T3 filed with the Securities and Exchange Commission (SEC) its Form 10-Q for the third quarter of 2013, ended September 30, 2013, which Tsumpes certified as being true and accurate. The Form 10-Q made no mention of the Offer Letter, the Written Agreement, or any of the terms of employment such as the $400,000 annual salary. Defendants contend T3 did not need to disclose those things in the Form 10-Q because T3 had been delisted by the New York Stock Exchange in July 2013 and no longer had any reporting/filing obligations. Regardless whether T3 had to file a Form 10-Q, it did so, and did so without disclosing any written employment agreement with Tsumpes. In his declaration, Tsumpes states he delayed signing the Written Agreement because "[T3] was laboring to complete its audited third quarter 2013 financial reports to the SEC." Defendants argue the Written Agreement was not required to be reported in the Form 10-Q because it covered the period ended September 30, 2013. The Written Agreement's two-year term commenced on February 26, 2013, which was within the reporting period.
The first date on which there is any evidence of the Written Agreement is June 24, 2015, when Tsumpes attached a pdf copy of that agreement to an e-mail sent to T3's counsel in the Delaware litigation. In opposition to the motion to compel arbitration, T3 submitted a declaration from Bell, the senior director of a technical services and consulting firm specializing in computer forensics. She conducted a forensic analysis of the pdf copy of the Written Agreement that Tsumpes had sent to T3's Delaware counsel in June 2015. She concluded the metadata for the document showed it was created on June 14, 2015.
Defendants challenge Bell's declaration as showing only that a pdf of the Written Agreement was created in June 2015 by scanning a paper document and no evidence was presented that the agreement was not itself created earlier. However, Bell also conducted a forensic analysis of Tsumpes' computer and concluded (1) there was no evidence of a Word version of either the Offer Letter or the Written Agreement on Tsumpes' hard drive or in his e-mails sent to and from his T3 e-mail account; (2) there was no evidence of any e-mail from Tsumpes or anyone else transmitting a copy of either the Proposed Offer Letter or the Purported Employment Agreement to T3's corporate counsel (Kenneth August of the August Law Group); and (3) the Written Agreement was accessed or obtained by an external hard drive and was not otherwise found on Tsumpes' T3 computer hard drive (other than the June 24, 2015 e-mail to counsel). Tsumpes did not produce evidence to establish the creation date of the Written Agreement.
From the evidence, the trial court could have drawn the inference the Written Agreement, though scanned into a pdf in June 2015, was actually created in September or October 2013. But the trial court declined to draw that inference and instead drew the permissible inference the Written Agreement was not created until June 2015. The standard of review compels us to accept that inference. (Sparks, supra, 207 Cal.App.4th at p. 1519 ["'Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed.'"].)
Defendants argue that the date on which he signed the Written Agreement is irrelevant to the enforceability of the arbitration provision because there was no evidence the T3 board of directors imposed a time deadline for signing an agreement. That argument is premised on the notion the trial court found that at the September 13, 2013 meeting the board of directors did approve the Offer Letter, which included a condition that Tsumpes sign a "mutually agreed upon Employment Agreement." The trial court found only that "the concept of the Employment Agreement may have been approved at the Board meeting on 9/13/13." The court did not find that the board of directors approved the Offer Letter and expressly found "the Agreement had not been reduced to writing at that time." The Written Agreement cannot be a manifestation of the parties' mutual assent because, as the trial court found, there was no mutual assent to an employment agreement with an arbitration clause. C. T3 Did Not Accept the Terms of the Offer Letter.
Defendants argue the arbitration provision in the Offer Letter was enforceable even if the one in the Written Agreement is not. He contends the evidence established that, at the September 13, 2013 meeting, the T3 board of directors approved a long-term employment agreement with him and that agreement must have been based on the Offer Letter. Although Defendants use a considerable portion of their opening and reply briefs to make this argument, it can be addressed with two points.
First, Defendants did not move to compel arbitration based on the Offer Letter; he moved to compel arbitration based only on section 18.7 of the Written Agreement. Second, the trial court, serving as the trier of fact, considered the declarations, assessed the declarants' credibility, and found, at most, "the concept" of an employment agreement "may have been approved by the board" but the agreement had not been reduced to a writing. The court found there was no mutual assent to an agreement to arbitrate.
We infer the trial court made all implied findings necessary to support its order. (Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263; Baugh v. Garl, supra, 137 Cal.App.4th at p. 744.) Thus, we infer the trial court impliedly, if not expressly, found that the T3 board of directors did not accept the terms of the Offer Letter. In his declaration, Nam stated specifically that neither he nor the board of directors approved the Offer Letter. Because there was no acceptance of the Offer Letter, there was no mutual assent based on its terms.
DISPOSITION
The order denying the motion to compel arbitration is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.