Barriga v. U-Haul Co. of Cal. CA1/3 ( 2022 )

Filed 9/15/22 Barriga v. U-Haul Co. of Cal. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
RUDOLPH BARRIGA,
Plaintiff and Respondent,
A163919
v.
U-HAUL CO. OF CALIFORNIA, (Alameda County
Super. Ct. No. HG21102237)
Defendant and Appellant.
U-Haul challenges the trial court’s denial of its motion to compel
arbitration of claims its former employee, Rudolph Barriga, brought against
it for discrimination and wrongful termination. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
U-Haul employed Barriga as a facility maintenance technician from
2004 until 2019, when U-Haul fired Barriga. Barriga subsequently filed a
complaint against U-Haul for discrimination based on race, color, ancestry,
and national origin in violation of the Fair Employment and Housing Act
(Gov’t Code, § 12940 et seq.) (FEHA); failure to prevent discrimination; and
wrongful termination in violation of public policy.
U-Haul moved to compel arbitration of Barriga’s claims on the basis
that Barriga had expressly agreed to arbitrate those claims by virtue of
electronically signing agreements to arbitrate in 2007 and 2013. It also
moved to compel arbitration on the basis that Barriga had impliedly agreed
1
to arbitration by continuing to work for U-Haul after learning about U-Haul’s
arbitration policy in those same agreements. The declaration of Mandy
Flanagan, a director in U-Haul International, Inc.’s (UHI) human resources
department, attached January 2007 and January 2013 arbitration
agreements that were electronically signed in Barriga’s name. In opposition,
Barriga explicitly averred he never executed the arbitration agreements and
presented evidence that other employees could have affixed his electronic
signature to the agreements. In response, U-Haul argued the authenticity of
the signatures and filed a supplemental declaration from Flanagan, in which
she discussed her familiarity with the database used by U-Haul employees to
electronically execute arbitration agreements.
After a hearing on the motion to compel arbitration, the trial court
found U-Haul had not met its burden of establishing the existence of a valid
arbitration agreement and denied the motion. U-Haul appealed. (Code Civ.
Proc., § 1294, subd. (a).)
DISCUSSION
As detailed below, we conclude the trial court did not err in finding that
U-Haul failed to satisfy its burden of proving the existence of an express or
implied-in-fact agreement to arbitrate. (Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 413 [“Because the existence of the
agreement is a statutory prerequisite to granting the petition, the petitioner
bears the burden of proving its existence by a preponderance of the
evidence.”]; see also Code Civ. Proc., § 1281.2.)
A. Express Agreement to Arbitrate
U-Haul argues that Barriga agreed to arbitrate his claims by affixing
electronic signatures to the 2007 and 2013 arbitration agreements. We
conclude the trial court’s finding that U-Haul did not satisfy its burden to
2
prove an express agreement to arbitrate was not erroneous as a matter of
law.
1. Governing Law and Standard of Review
A party moving to compel arbitration meets its initial burden by
presenting a signed arbitration agreement but, where the validity of the
signature is challenged, the petitioner must “establish by a preponderance of
the evidence that the signature was authentic.” (Espejo v. Southern
California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060
(Espejo).)
To authenticate an electronic signature, the petitioner must show the
electronic signature “was the act of the person.” (Civ. Code, § 1633.9, subd.
(a).) “The act of the person may be shown in any manner, including a
showing of the efficacy of any security procedure applied to determine the
person to which the electronic record or electronic signature was
attributable.” (Id., § 1633.9, subd. (a).) For example, a party may present
evidence that the signatory was required to use a unique, private login and
password to affix the electronic signature, along with evidence detailing the
procedures the person had to follow to electronically sign the document and
the accompanying security precautions. (Espejo, supra, 246 Cal.App.4th at p.
1062.)
U-Haul argues, incorrectly, that Barriga had to prove the electronic
signatures were not his as he bore the burden of proof on issues relating to
forgery. But once Barriga declared he did not sign the agreements, U-Haul
had the burden of establishing by a preponderance of the evidence that the
signatures were authentic. (See Espejo, supra, 246 Cal.App.4th at p. 1060.)
The cases U-Haul cites as support for its argument are inapposite as they do
not challenge the fundamental premise that the moving party bears the
3
burden of establishing the existence of an agreement to arbitrate. (See id. at
p. 1057; Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP
(2013) 219 Cal.App.4th 1299, 1308.)
Where, as here, the trial court’s decision “is based on the court’s finding
that [the party seeking arbitration] failed to carry its burden of proof, the
question for the reviewing court is whether that finding is erroneous as a
matter of law.” (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th
1062, 1066.) “ ‘ “Specifically, the question becomes whether the appellant’s
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such character
and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.’ ” ’ ” (Id. at p. 1067.)
“ ‘ “[W]here . . . the judgment is against the party who has the burden
of proof, it is almost impossible for [that party] to prevail on appeal by
arguing the evidence compels a judgment in [that party’s] favor. That is
because unless the trial court makes specific findings of fact in favor of the
losing [party], we presume the trial court found the [party’s] evidence lacks
sufficient weight and credibility to carry the burden of proof. [Citations.] We
have no power on appeal to judge the credibility of witnesses or to reweigh
the evidence.” ’ ” (Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at
p. 1067.) “ ‘The appellate court cannot substitute its factual determinations
for those of the trial court; it must view all factual matters most favorably to
the prevailing party and in support of the judgment.’ ” (Ibid.)
2. Barriga’s Evidence
The below testimony is found in Barriga’s declaration submitted to the
trial court in opposition to the motion to compel arbitration. In sum, Barriga
expressly denied signing any arbitration agreement and testified that other
4
U-Haul employees had the means and opportunity to execute the agreements
in his name.
At one point in Barriga’s employment (he does not specify a date), he
was prompted to electronically sign an arbitration agreement while using a
shared computer terminal at a U-Haul facility. Barriga refused to do so. He
was aware of employment arbitration agreements and would not sign the U-
Haul agreement based on advice he had previously received from an attorney
representing another individual in an employment dispute to never sign an
arbitration agreement as a condition of employment.
Barriga was unable to exit out of the electronic arbitration agreement
without signing it. He therefore walked away and left the unsigned
arbitration agreement open on the shared computer. Before anybody else
could use the computer, that person would have had to type in Barriga’s
social security number and affix his electronic signature on the arbitration
agreement. A copy of Barriga’s social security number was kept on site, and
several managers had access to it. On multiple occasions, he witnessed
managers taking safety training tests for other employees using U-Haul’s
electronic records system. In fact, he learned, after logging into the U-Haul
computer system, that someone had completed safety training courses under
his name.
After U-Haul terminated his employment, Barriga asked for his
personnel file and U-Haul produced what it represented to be Barriga’s entire
personnel file. This file did not include the arbitration agreement that
Barriga purportedly signed in 2007; it only included the 2013 arbitration
agreement. Barriga denied ever signing either agreement. Barriga also
pointed out that the fonts of the electronic signatures in the documents
5
attached to Flanagan’s declaration differed from their counterparts in the
personnel file U-Haul provided Barriga.
3. Flanagan’s Supplemental Declaration
U-Haul’s evidence regarding the authenticity of the electronic
signatures consisted of Flanagan’s supplemental declaration.1 Flanagan
began working for UHI in 2012, and worked in its human resources
department starting in 2019. Her job duties required her to develop and
maintain knowledge of UHI’s human resources technology systems, and she
had the knowledge and training required to analyze data related to electronic
human resources documents.
Flanagan stated she knew “for a fact” that an employee had to use their
System Member Identification Number (SMID) and a “unique confidential
and secure” password “chosen by the employee . . .” to log in to UHI’s human
resources platform and review and electronically execute human resources
documents such as the arbitration agreements. Based on the data she
reviewed, and which she claimed could not be altered, someone using
Barriga’s SMID and password logged on to the platform in 2007 and again in
2013, and electronically signed the arbitration agreements. This data also
showed that someone using Barriga’s SMID and password electronically
signed a harassment policy and an electronic communication policy
approximately five minutes after someone had signed the 2013 arbitration
agreement in Barriga’s name.
1 U-Haul filed two prior Flanagan declarations. However, U-Haul does
not challenge the trial court’s findings that those two declarations were
insufficient to satisfy U-Haul’s burden, focusing instead on Flanagan’s
supplemental declaration. Our review is limited to those issues that have
been adequately raised and supported in U-Haul’s brief. (Lee v. Kim (2019)
41 Cal.App.5th 705, 721.)
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The trial court found Flanagan’s declaration inadequate to sustain U-
Haul’s burden as Flanagan did not have sufficient personal knowledge to
authenticate the 2007 and 2013 arbitration agreements.
4. Application
The trial court undertook its duties to weigh the evidence and
concluded U-Haul did not satisfy its burden to show the electronic signatures
“w[ere] the act of” Barriga.2 It is not our role to reweigh the evidence or
second guess the trial court’s credibility determinations.
U-Haul’s evidence is not uncontradicted or of “ ‘ “ ‘such a character and
weight as to leave no room for a judicial determination that it was
insufficient’ ” ’ ” to establish the authenticity of the electronic signatures.
(Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at p. 1067.) It does
not support a finding as a matter of law that Barriga was required to use a
unique, private login and password to affix his signature on the arbitration
agreements such that he is the only person who could have signed the
agreements. Significantly, Flanagan’s supplemental declaration is unclear as
to whether an employee must enter his or her SMID and password to log in to
the UHI platform and affix an electronic signature to documents, or if the
2 We reject Barriga’s contention that U-Haul waived any argument
regarding the existence of an agreement to arbitrate in 2007 by failing to
present adequate argument on that issue in its opening brief. Contrary to
Barriga’s assertion, U-Haul’s arguments in its opening brief concern both the
2007 and 2013 arbitration agreements. We also reject Barriga’s assertion
that U-Haul waived any argument regarding Flanagan’s supplemental
declaration because U-Haul filed the declaration after it had filed its reply.
U-Haul argued at the hearing on its motion that this declaration was
sufficient to authenticate the electronic signatures, yet Barriga never
objected to the declaration. “[A]n appellate court will ordinarily not consider
procedural defects or erroneous rulings where an objection could have been,
but was not raised below.” (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 826.)
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SMID and password is only needed to log in to the platform. Barriga’s
evidence, on the other hand, was that someone else affixed his signature to
one of the arbitration agreements after he logged into the shared computer
terminal, and that other individuals had access to the information necessary
to complete and/or alter his personnel documents.
Moreover, the trial court did not abuse its discretion in concluding that
Flanagan lacked personal knowledge of the security features used by U-Haul
to ensure that Barriga’s electronic signature could not be entered on the
arbitration agreements by other individuals. (See Alvarado v. Anderson
(1959) 175 Cal.App.2d 166, 179 [“Whether foundational evidence is of such
substantiality as will support a finding of a foundational fact is a matter
which lies within the legal discretion of the trial judge and his decision will
not be overruled on appeal unless it constitutes an abuse of that discretion.”];
see also Evid. Code, §§ 403, subd. (a)(2), 702, subd. (a).) She did not explain,
for example, how she “kn[e]w for a fact” that the password used by an
employee to login into the UHI platform was confidential and was one of the
employee’s choosing, and that U-Haul or UHI used this security measure in
2007 and 2013, before she even worked for UHI’s human resources
department. As a result, U-Haul failed to show that Barriga’s login
information was known only by him.
Espejo, the case U-Haul relies on, is distinguishable. In Espejo, the
appellate court reversed the trial court’s denial of the employer’s petition to
compel arbitration of employment claims. (Espejo, supra, 246 Cal.App.4th at
pp. 1050, 1057.) Before the trial court, the employer argued that the
employee had signed an arbitration provision as part of his offer of
employment. (Id. at p. 1051.) The employer presented detailed evidence
describing each step an applicant would have to take to place his name on the
8
signature line and the security precautions that would preclude transmission
and use of an applicant’s e-signature by someone else. Specifically, the
employer’s systems consultant described how the employer provided a unique
username and password directly and orally to the applicant over the phone,
how the employer’s online system would prompt the applicant to re-set the
password to one of his choosing once he logged into the system using this
username and password, and how the applicant would only have access to the
arbitration agreement once he re-set his password. (Id. at p. 1053.) On
appeal, the reviewing court concluded that those details established that the
electronic signature on the arbitration agreement was “the act of” the
employee. (Id. at p. 1062.)
Such details are absent here. Moreover, the employee in Espejo
provided no contrary showing, stating only that he did not recall signing the
arbitration agreement. (Espejo, supra, 246 Cal.App.4th at p. 1054.) Barriga
went much farther, as shown by the evidence already described and his
unequivocal denial that he ever signed any U-Haul arbitration agreements
based both upon his specific recollection of refusing to sign an agreement and
his general opposition to the signing of any such agreement.
U-Haul points out that Barriga did not contest that he signed the
harassment policy and the electronic communication policy, and that he
failed to explain how he signed those two policies approximately five minutes
after the 2013 arbitration agreement was signed. But U-Haul has the burden
to present evidence showing the existence of an arbitration agreement
between Barriga and U-Haul, and it did not present evidence supporting a
finding as a matter of law that Barriga had to have signed the arbitration
agreement if he was also the individual who signed the other two policies five
minutes later. There is also nothing in the record beyond the use of Barriga’s
9
log-in information – information apparently not limited to him – indicating it
was Barriga who signed the policies rather than the individual who signed
the arbitration agreement after Barriga walked away from the computer
terminal.
Finally, U-Haul contends the trial court erroneously applied a
heightened standard of proof that required U-Haul to submit evidence of
someone physically seeing Barriga sign the 2013 arbitration agreement,
citing to a single comment its counsel made at the hearing on the motion and
ignoring the other arguments and evidence presented to the court. Based on
the evidence before it, the trial court expressly found that Flanagan lacked
not only knowledge of the circumstances surrounding Barriga’s execution of
the agreements, but also of the security measures U-Haul used to ensure the
authenticity of electronic signatures.
We conclude the trial court did not err as a matter of law in finding no
express agreement to arbitrate between U-Haul and Barriga. U-Haul’s
complaint that the trial court ignored public policy in making its findings is
of no consequence as the public policy in favor of arbitration “ ‘ “does not
extend to those who are not parties to an arbitration agreement, and a party
cannot be compelled to arbitrate a dispute that he has not agreed to resolve
by arbitration. [Citation.]” ’ ” (Westra v. Marcus & Millichap Real Estate
Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.)
B. Implied-in-Fact Agreement
U-Haul next argues that the arbitration policies set forth in the 2007
and/or 2013 arbitration agreement became an implied-in-fact arbitration
agreement with Barriga by virtue of his receipt of those policies and
subsequent, continued employment. As California law does not allow an
10
employer to effectuate a unilateral policy change if it is ambiguous, this claim
fails.
1. Governing Law and Standard of Review
“California law permits employers to implement policies that may
become unilateral implied-in-fact contracts when [at-will] employees accept
them by continuing their employment.” (Asmus v. Pacific Bell (2000) 23
Cal.4th 1, 11.) 3 Accordingly, an employee’s acceptance of an agreement to
arbitrate may be implied-in-fact where the employee’s continued employment
constitutes his or her acceptance of an agreement proposed by the employer.
(Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420; see Pinnacle
Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 236 (Pinnacle).)
Courts look to the language of the employer’s arbitration policy to
determine whether it constitutes a unilateral policy change. In Harris v. TAP
Worldwide, LLC (2016) 248 Cal.App.4th 373 (Harris), the plaintiff employee
received an employee handbook stating arbitration was “ ‘an absolute
prerequisite’ ” to “ ‘hiring by, and continued employment with,’ ” the
employer. (Id. at p. 377.) It further stated: “ ‘If for any reason, an applicant
fails to execute the Agreement to Arbitrate yet begins employment, that
employee will be deemed to have consented to the Agreement to Arbitrate by
Civil Code section 1621 defines an implied contract: “An implied
3
contract is one, the existence and terms of which are manifested by conduct.”
“Although an implied in fact contract may be inferred from the ‘conduct,
situation or mutual relations of the parties, the very heart of this kind of
agreement is an intent to promise.’ ” (Friedman v. Friedman (1993) 20
Cal.App.4th 876, 887.) Like an express contract, an implied-in-fact contract
“ ‘ “must be founded upon an ascertained agreement of the parties to perform
it, the substantial difference between the two being the mere mode of proof by
which they are to be respectively established.” ’ ” (Ibid.)
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virtue of receipt of this Handbook.’ ” (Id. at p. 378.) Because the handbook
“expressly addressed the effect of an employee’s failure to execute the
attached arbitration agreement[,]” the employee “was deemed to have
consented to arbitrate by virtue of acceptance of the [handbook]” and his
commencement of employment. (Id. at p. 384.)
In contrast, the court in Mitri v. Arnel Management Co. (2007) 157
Cal.App.4th 1164 (Mitri) found no implied-in-fact agreement to arbitrate
where the employee handbook stated that “ ‘[a]ny dispute arising out of
employment with the Company, as allowed by law, will be settled by binding
arbitration.’ ” (Id. at pp. 1167, 1170–1171.) This was because the arbitration
provision also provided that “ ‘[a]s a condition of employment, all employees
are required to sign an arbitration agreement,’ ” and the plaintiff employee
never signed the arbitration provision. (Ibid.) The provision further stated,
“ ‘[e]mployees will be provided a copy of their signed arbitration agreement . .
. .’ ” (Id. at p. 1171.) Applying general principles of contract interpretation,
the court concluded the language indicated the employer intended to enter a
bilateral arbitration contract with employees by having employees sign a
separate arbitration agreement. (Id. at p. 1171.)
Here, Barriga contends the arbitration provision is ambiguous
regarding whether he was required to sign the arbitration provision to
effectuate a change in policy. Whether a written instrument is ambiguous –
that is, reasonably susceptible to more than one interpretation – is a question
of law subject to de novo review. (Smith v. Adventist Health System/West
(2010) 182 Cal.App.4th 729, 754–755.) If the instrument is ambiguous, the
court may admit extrinsic evidence to aid its interpretation. (WYDA
Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.) Where, as here, the
12
extrinsic evidence is not conflicting, resolution of the ambiguity is a question
of law. (See Winet v. Price (1992) 4 Cal.App.4th 1159, 1166.)
1. Factual and Procedural Background
U-Haul presented evidence to the trial court that someone affixed
Barriga’s electronic signature to arbitration agreements in 2007 and in 2013.
U-Haul argues on appeal that Barriga admitted to reading at least one of
those agreements, and that it is likely the agreement Barriga read was the
2013 agreement. Barriga also indicates that the arbitration agreement he
was prompted to sign was the 2013 arbitration agreement.
The three-page arbitration agreement Barriga purportedly received in
2013 is entitled “Notice to Employees About U-Haul’s Employment Dispute
Resolution Policy” (Notice). It states that the employment dispute resolution
policy (EDR) “APPLIES TO YOU” and “will govern all existing or future
disputes between you and U-Haul Co. of California . . . .” It further states
that “Your decision to accept employment or continue employment with U-
Haul Co. of California constitutes your agreement to be bound by the EDR,”
and it describes the EDR procedures and the arbitration process. This
language immediately precedes, “Likewise, U-Haul agrees to be bound by the
EDR. This mutual obligation to arbitrate claims means that both you and U-
Haul are bound to use the EDR as the only means of resolving any
employment-related disputes.”
The first page of the Notice directs the employee to a link if the
employee wants to review the rules governing the procedures to be used in
arbitration “prior to signing the Arbitration Agreement . . . .” Near the end of
the Notice is a separate section entitled “U-Haul Employee Agreement to
Arbitrate” (arbitration agreement). This section states, among other things,
“both U-Haul and I agree to forego any right we each may have had to a jury
13
trial on issues covered by the EDR . . . .” At the end of this section is a
signature block for the employee.
The 2007 Notice is almost identical to the 2013 Notice, the only
relevant difference being that the 2007 Notice does not contain language
advising employees to review the arbitration rules before signing the
arbitration agreement.
In its petition to compel arbitration, U-Haul argued that Barriga
assented to the EDR by continuing his employment after receiving the
Notices. Barriga did not address the existence of an implied-in-fact
agreement to arbitrate in his opposition, though he argued at the hearing on
the motion that the arbitration provisions required his signature to effectuate
any agreement to arbitrate.
The trial court did not expressly address whether Barriga assented to
an arbitration provision by continuing his employment with U-Haul. It noted
only that the “agreement provides on page 1 that if Plaintiff signed the
agreement and continued working for U-Haul, he effectively agreed that the
arbitration agreement applied to his FEHA claims.” Because the trial court
denied U-Haul’s motion to compel arbitration on the basis that U-Haul failed
to carry its burden to prove Barriga entered into the agreement, we infer that
the trial court implicitly found no implied-in-fact agreement to arbitrate.4
4 U-Haul contends the doctrine of implied findings does not apply as
this was not a “trial” under Code of Civil Procedure section 632. The doctrine
of implied findings requires the appellate court to infer that the trial court
made implied factual findings favorable to the prevailing party on all issues
necessary to support the judgment, including for omitted or ambiguously
resolved issues. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,
1133–1134.) Because U-Haul filed a motion to compel arbitration under Code
of Civil Procedure section 1281 et seq., the doctrine of implied findings is
applicable pursuant to Code of Civil Procedure section 1291. (See Carbajal v.
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2. Application
U-Haul focuses on Barriga’s admission that he read at least one of the
Notices at issue, the one he refused to sign and instead walked away from.
Both parties hypothesize in their briefs that Barriga received the 2013
Notice, and it is undisputed that Barriga thereafter continued his
employment with U-Haul for several more years.5 Regardless of which
Notice Barriga received, we conclude that both the 2007 and 2013 Notices are
ambiguous and therefore could not constitute a unilateral policy change.
Although the Notices state that continued employment constitutes the
employee’s agreement to be bound by the EDR, both Notices clearly convey a
mutuality of promises rather than a mere unilateral implementation of
company policy. (Bleecher v. Conte (1981) 29 Cal.3d 345, 350 [“A bilateral
contract is one in which there are mutual promises given in consideration of
each other.”].) In particular, the arbitration agreement included in each
Notice provides, “in exchange for my agreement to arbitrate, U-Haul also
agrees to submit all claims and disputes it may have with me to final and
CWPSC, Inc. (2016) 245 Cal.App.4th 227, 237.) Therefore, where noted, we
infer that the trial court made implied factual findings favorable to Barriga.
5 Barriga contends there is a reasonable inference that he read only the
title of the Notice and maybe the first sentence but not the language stating
that his continued employment constitutes his agreement to be bound by the
EDR, and that this inference shows U-Haul did not notify him that his
continued employment constitutes acceptance of the EDR. This argument
lacks merit. The record does not demonstrate that Barriga was prevented
from reading or understanding the Notice. Rather, Barriga’s own evidence
shows that he refused to sign the arbitration agreement. “The fact that
defendant either chose not to read or take the time to understand [the
agreement to arbitrate] is legally irrelevant” as to the issue of whether an
implied-in-fact agreement to arbitrate exists. (Harris, supra, 248
Cal.App.4th at p. 383; see also Pinnacle, supra, 55 Cal.4th at p. 236 [“An
arbitration clause within a contract may be binding on a party even if the
party never actually read the clause.”].)
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binding arbitration.” As in Mitri, the signature block in the arbitration
agreements and the language in the 2013 Notice advising employees to
review the arbitration rules before signing the agreement further underline
that U-Haul intended to enter into a bilateral arbitration agreement with
Barriga. That language and the separate arbitration agreements would be
surplusage if Barriga’s continued employment alone constituted acceptance of
the EDR policy. (See Civ. Code, § 1641 [“The whole of a contract is to be
taken together, so as to give effect to every part, if reasonably practicable,
each clause helping to interpret the other”].)
The Notices therefore support an interpretation that Barriga’s
signature was required to effectuate an arbitration agreement. And any
ambiguity as to the requirement of an employee signature is to be construed
against U-Haul. (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233,
247–248 [ambiguity in a form arbitration agreement prepared entirely by the
employer would be construed in favor of the employee]; see also Esparza v.
Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 789.)
The limited extrinsic evidence on this issue is not in conflict and
reinforces our construction of the Notices. Flanagan stated that U-Haul
required all employees “to indicate their assent to the Arbitration Agreement
by affixing his or her electronic signature to the document.” This is
consistent with Barriga’s testimony that his district-level manager told him
he “needed to sign an arbitration agreement.” Because “[m]utual assent is
determined by the reasonable meaning of the parties’ words and acts”
(Esparza v. Sand & Sea, Inc., supra, 2 Cal.App.5th at p. 789), this evidence,
coupled with the ambiguities in the Notices, indicates U-Haul intended to
enter into a bilateral agreement to arbitrate by having Barriga sign the
agreement.
16
The cases relied on by U-Haul, Harris and Diaz v. Sohnen Enterprises
(2019) 34 Cal.App.5th 126, are distinguishable. The arbitration provision in
Harris, as discussed above, expressly addressed the effect of the employee’s
failure to execute the agreement by providing that receipt of the provision
and continued employment constituted acceptance of the agreement if he did
not sign the arbitration provision. (Harris, supra, 248 Cal.App.4th at p. 377.)
No similar language appears in the Notices here. In Diaz v. Sohnen
Enterprises, the plaintiff received notice at an in-person meeting that the
company was adopting a new dispute resolution policy requiring arbitration
of all claims. (Diaz v. Sohnen Enterprises, supra, 34 Cal.App.5th at p. 128.)
At the meeting, the employer’s chief operating officer told all employees
present, including the plaintiff, that continued employment by an employee
who refused to sign the agreement would itself constitute acceptance of the
policy. (Ibid.) Here, there is no evidence that Barriga was informed that, if
he failed to sign the arbitration agreements, his receipt of the Notices and his
continued employment would constitute his acceptance to be bound by the
EDR.
Accordingly, the trial court did not err in implicitly finding no implied-
in-fact agreement to arbitrate.
2. Evidentiary Hearing
U-Haul seeks reversal because the trial court did not allow limited
discovery and did not hold an evidentiary hearing. We do not find this
argument persuasive.
At the hearing on its motion to compel arbitration, U-Haul stated,
without more, that if the court had any “hesitation” about the authenticity of
the electronic signatures it would be appropriate to stay the case to allow for
limited discovery and an evidentiary hearing. The trial court implicitly
17
denied U-Haul’s request for an evidentiary hearing when it denied the
motion to compel arbitration without granting a continuance or holding an
evidentiary hearing.6
U-Haul has forfeited this issue. It did not request an evidentiary
hearing until the hearing on its motion.7 Even then, it raised the issue in a
cursory manner without cogent argument or citation to legal authority.
Barriga had no opportunity to brief this issue, and the argument U-Haul now
raises on appeal was not properly before the trial court. “Appellate courts are
loath to reverse a judgment on grounds that the opposing party did not have
an opportunity to argue and the trial court did not have an opportunity to
consider.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004)
115 Cal.App.4th 168, 178.)
Even if there were no forfeiture of the issue, we find no abuse of
discretion. Ordinarily, on a motion to compel arbitration, facts are to be
proven by affidavit or declaration and documentary evidence, “with oral
testimony taken only in the court’s discretion.” (Rosenthal v. Great Western
Fin. Securities Corp., supra, 14 Cal.4th at pp. 413–414.) “There is simply no
authority for the proposition that a trial court necessarily abuses its
6 U-Haul seems to suggest the trial court abused its discretion by
failing to exercise its discretion. It cites Ashburn v. AIG Financial Advisors,
Inc. (2015) 234 Cal.App.4th 79 (Ashburn) for this proposition. But, as
discussed below, Ashburn is distinguishable, and the record does not “clearly
show[]” that the court failed to exercise its discretion. (See Fassberg
Construction Co. v. Housing Authority of City of Los Angeles (2007) 152
Cal.App.4th 720, 768.)
7 At oral argument, U-Haul contended that it requested an evidentiary
hearing in its reply brief filed with the trial court. This representation was
inaccurate as U-Haul requested only limited depositions and an opportunity
to file supplemental briefing based on that evidence. Nowhere in its reply
brief did U-Haul request an evidentiary hearing.
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discretion, in a motion proceeding, by resolving evidentiary conflicts without
hearing live testimony.” (Id. at p. 414.)
However, it may be an abuse of discretion to deny an evidentiary
hearing where there are “sharply conflicting” versions of the facts and
credibility is at issue. (Rosenthal v. Great Western Fin. Securities Corp.,
supra, 14 Cal.4th at p. 414.) Here, Flanagan’s declarations do not “sharply
conflict” with the factual account presented by Barriga, as they allow for the
possibility that others could have affixed Barriga’s electronic signature to the
arbitration agreements. U-Haul does not purport that any additional or
different evidence would have been presented at the evidentiary hearing, and
it also fails to explain why additional testimony was necessary to resolve
credibility issues.
This case is markedly different from Ashburn, supra, 234 Cal.App.4th
79, relied upon by U-Haul. There, despite starkly differing and significant
evidence regarding the purported arbitration agreements, the trial court
granted the petition to compel arbitration without holding an evidentiary
hearing. (Id. at pp. 86–89, 98.) On appeal, the court reversed, stating, “In
light of the record here, we do not understand how the trial court could have
made such a finding without an evidentiary hearing.” (Id. at p. 95.) The
court reasoned that “there was significant dispute about what appellants
signed, how they came to sign it, and what they signed said—not to mention
extensive evidence of the significant relationship [one defendant] had with
each appellant before they signed anything,” and “the parties do not even
agree as to what the pertinent documents are even called.” (Id. at p. 98.)
Here, there are no similar factual disputes.
Finally, U-Haul failed to present any argument or legal authority in
support of its contention that the trial court abused its discretion by refusing
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to allow limited discovery. U-Haul also made no showing to the trial court
that it needed to conduct discovery on matters pertinent to the authenticity of
the electronic signatures. Thus, U-Haul has not established that it has been
unfairly denied discovery. (See Rosenthal v. Great Western Fin. Securities
Corp., supra, 14 Cal.4th at pp. 412–413.)
In sum, U-Haul has forfeited this issue. Were it not forfeited, we would
find the trial court did not err in declining to allow limited discovery and to
hold an evidentiary hearing.
DISPOSITION
The order denying the motion to compel arbitration is affirmed.
Respondent Rudolph Barriga shall recover costs on appeal.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Rodríguez, J.
A163919/Barriga v. U-Haul Co. of California
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