Orantes v. Westlake Wellbeing Properties CA2/5 ( 2021 )

Filed 3/19/21 Orantes v. Westlake Wellbeing Properties CA2/5
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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 This opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ODILIA ORANTES et al., B295150
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC666337)
v.
WESTLAKE WELLBEING
PROPERTIES LLC et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Amy D. Hogue, Judge. Affirmed.
Stokes Wagner, Peter B. Maretz, Shirley A. Gauvin, and
Adam L. Parry, for Defendants and Appellants.
Lavi & Ebrahimian, Joseph Lavi, Jordan D. Bello, and
Vincent Granberry, for Plaintiffs and Respondents.
Defendant Westlake Wellbeing Properties, LLC (Westlake)
employed plaintiffs Odilia Orantes (Orantes) and Maria Elena
Avila Cardona (Cardona) as housekeepers at the Four Seasons
Hotel Westlake Village. Orantes, Cardona, and another former
Westlake employee filed a class action complaint alleging wage
and hour claims against Westlake, and Westlake moved to
compel arbitration as to Orantes and Cardona. We consider
whether the trial court erred in finding the purported arbitration
agreements were unenforceable due to fraud in the execution in
Orantes’s case and uncertain terms in Cardona’s case.
I. BACKGROUND
A. The Parties
Westlake is the employing entity for the Four Seasons
Hotel in Westlake Village, California.
Orantes was born in Guatemala and moved to the United
States in 1988 when she was about 27 years old. She speaks and
reads only “very basic” English, enough to communicate with
hotel guests regarding, for example, their need for towels or room
cleaning. When she was hired by Westlake in 2007, her English
was even more limited. Westlake personnel knew her English
was limited and, when she was required to sign a document in
English, “[s]omeone would translate and give a basic description
of the document before [she] would sign it.” Orantes resigned her
position with Westlake in 2017.
Cardona was born in Colombia and moved to the United
States in 2008 when she was about 36 years old. She did not
speak or read any English when Westlake hired her as a
housekeeper in 2012. English-speaking managers at Westlake
knew she did not speak English and relied on other employees to
2
interpret when they needed to speak with her. Cardona resigned
her position with Westlake in 2016.
Orantes, Cardona, and a former colleague, Karla Blanco,
filed a class action complaint asserting wage and hour claims
against Westlake and affiliated entities in 2017.1 This appeal
concerns Westlake’s motions to compel arbitration as to Orantes
and Cardona.
B. Westlake’s Motions to Compel Arbitration
In its motions to compel arbitration, Westlake alleged that,
as part of the hiring process, Orantes and Cardona each executed
an individual employment contract dubbed an “EmPact.”2 The
EmPacts included terms for a mediation and arbitration program
given the acronym “C.A.R.E.” (“Complaint, Arbitration & Review
for Employees”). With its motion to compel arbitration, Westlake
submitted unsigned EmPact booklets and signed, one-page
EmPact forms for both Orantes and Cardona. The materials
relevant to Orantes are similar, but not identical, to those
relevant to Cardona.
Westlake’s motion was also accompanied by declarations
from Jim Cathcart (Cathcart), its human resources director since
1
We cannot further describe the nature of the lawsuit
because Westlake, the party who has the burden of providing an
adequate record, did not include the complaint in its appellate
appendix.
2
If it is not obvious, “EmPact” is a portmanteau of
“employee” and “pact.” The word is accompanied by a service
mark symbol in many of the documents we discuss in this
opinion. We omit the service mark when we quote these
documents.
3
2010. The declarations averred an “EmPact is presented to each
employee shortly after being hired” and its meaning is “explained
to all new hires . . . at the time of their hire.” According to
Cathcart, employees are informed arbitration is “not mandatory
or a condition of employment.” Cathcart’s declarations did not
suggest he had personal knowledge of either the specific
documents presented to Orantes and Cardona or of how the
hiring documents were explained to them. Rather, he declared
only that he found the one-page EmPact forms they appeared to
have signed and unsigned EmPact booklets in their personnel
files.
As we shall discuss, Orantes and Cardona acknowledged
they signed the one-page EmPact forms but denied they had seen
the larger EmPact booklet or were told about the document’s
arbitration provisions.
1. The Orantes EmPact materials
Westlake submitted a copy of an EmPact booklet dated
August 2006. The cover includes the phrase “EmPact with”
followed by a blank line, which is not filled in. Following a table
of contents, there are 64 numbered pages. The booklet is written
entirely in English.
Page 4 bears the heading “EMPACT” and states, among
other things, “The Four Seasons Hotel Westlake Village
recognizes my valuable service as an employee, and agrees this __
day of _____, 20__, to provide me with the benefits described in
my EmPact. In return, I, _____ agree to abide by the principles,
goals and policies in this EmPact . . . . [¶] . . . [¶] Our signatures
on page 60 of EmPact confirm our mutual agreement to this
4
philosophy, these goals, and all the rights and responsibilities in
this EmPact . . . .” None of the blanks are filled in.
Page 60 also bears the heading “EMPACT.” It includes
lines for a manager’s and an employee’s signature at the bottom.
Neither is signed. Page 61 is a duplicate of page 60, and likewise
bears no signatures. As relevant to this case, the document at
pages 60 and 61 of the booklet recites promises by the employee
to “[u]se C.A.R.E. first for all complaints even if I have exercised
my right to opt out of the mediation/arbitration provisions of
C.A.R.E.” and, “[u]nless I have exercised my right to opt out, [to]
use the mediation/arbitration procedure described in C.A.R.E. as
the exclusive method of resolving any dispute I may have relating
to termination of my employment (including constructive
discharge) and/or claims of employment discrimination,
harassment, or wage/hour violations.”
The EmPact booklet’s discussion of the C.A.R.E. program
begins at page 56. This section begins with a list of six steps for
resolving disputes: (1) informal discussion between the employee
and his or her immediate supervisor; (2) a written complaint to
the human resources office; (3) a human resources investigation;
(4) a written decision by the human resources office; (5) an appeal
to the general manager; and (6) mediation and arbitration. The
mediation/arbitration step is explained as follows: “If I am not
satisfied with the General Manager’s written decision in STEP 5,
and the complaint is based on one of the following types of claims
as defined by law: [¶] a. employment discrimination; [¶] b.
harassment as it relates to my employment; [¶] c. a wage or hour
violation; ¶ d. or termination of my employment from Hotel
(including ‘constructive discharge,’ but not a permanent layoff);
[¶] then I must submit my complaint to be heard by an
5
independent mediator/arbitrator unless I have chosen to opt out
of the mediation/arbitration provisions by following the opt-out
procedure provided on page 63.”
The “OPT-OUT VERIFICATION” form at page 63 explains
the opt-out procedure, which includes signing and returning the
form to Westlake’s director of human resources, and states that
doing so will render the employee ineligible for no-fault
separation pay and “any of the other monetary or non-monetary
benefits available to employees who choose to be bound by the
mediation/arbitration provisions of C.A.R.E.” The signature lines
on this page are blank.
After listing the six steps of the C.A.R.E. process, the
C.A.R.E. section of the EmPact booklet includes 13 paragraphs
discussing mediation and arbitration. These span three pages,
from page 56 through page 58. Each paragraph begins with an
underlined phrase, but there is no emphasis of any other text.
Paragraph Two, on page 57, begins with the underlined
question, “What is Mediation/Arbitration?” It explains disputes
will be referred to non-binding mediation and then, if necessary,
binding arbitration administered by the American Arbitration
Association (AAA) (or another agency if the employee and
Westlake both agree) pursuant to AAA rules.3 Paragraph Four,
on the same page, reiterates arbitration will be “final and
binding.” Paragraph 8, on page 58, begins with the underlined
phrase, “Waiver of Right to Go to Court” and expressly states, for
the first time, that an employee who does not opt out of C.A.R.E.
3
Paragraph Two ends with a notice that a copy of the AAA
rules may be found at www.adr.org.
6
“waive[s] [their] right to have [their] case submitted to a court of
law and decided by a judge or jury.”
In addition to the unsigned EmPact booklet, Westlake
submitted with its motion to compel arbitration a one-page form,
also titled “EMPACT,” bearing Orantes’s signature. A portion of
the form is similar in substance to unsigned signature pages in
the booklet we have already mentioned (pages 60-61), but the
form is not identical to any page in the booklet and it does not
bear a page number. In other words, there is no indication the
signed one-page form was taken from the larger EmPact booklet
Cathcart found in Orantes’s personnel file. Like the booklet, the
one-page form is written in English only.
The one-page EmPact form is printed in horizontal or
landscape orientation and includes two columns of text. The first
column begins with a paragraph which states, in part, “I Odilia
Orantes agree to abide by the principles, goals and policies in this
EmPact.” The remainder of the first column is a list of
“principles” and a list of “goals,” neither of which mentions
arbitration. The second column bears the heading “EmPact
SUMMARY AND UNDERSTANDING” followed by a list of
promises by the employee and by Westlake. The employee
promises to: “Abide by Four Seasons Hotel Westlake Village goals
and standards; [¶] Accept[ ] my compensation and benefits; [¶]
Us[e] C.A.R.E. first for all complaints even if I have exercised my
right to opt out of the arbitration provisions of C.A.R.E; and [¶]
Unless I have exercised my right to opt out, using the arbitration
procedure described in C.A.R.E. as the exclusive method of
resolving any dispute I may have related to termination of my
employment (including constructive discharge) and/or claims of
employment discrimination or harassment . . . .”
7
The one-page form is signed by Orantes and a Westlake
regional vice president and general manager. In a declaration
filed in support of her opposition to Westlake’s motion, Orantes
acknowledged her signature on the one-page EmPact form, but
stated Westlake knew she could not read it in English and it was
described to her as an agreement not to share hotel guests’
confidential information. She denied ever having seen the larger
EmPact booklet in Spanish or English.4
2. The Cardona EmPact materials
Unlike the EmPact booklet Westlake submitted as to
Orantes (dated 2006), which included a cover page with a blank
space for Orantes’s name, the EmPact booklet Westlake
submitted as to Cardona (dated 2008) does not include a cover
page. Like the Orantes EmPact booklet, the Cardona EmPact
booklet is written entirely in English. It includes 65 numbered
pages.
Similar to the Orantes EmPact booklet, page four of the
Cardona EmPact booklet bears the heading “EMPACT” and
includes a promise that “I, _____ agree to abide by the principles,
goals and policies in this EmPact. . . . [¶] . . . [¶] Our signatures
on page 61 of EmPact confirm our mutual agreement to this
philosophy, these goals, and all the rights and responsibilities in
this EmPact . . . .” As with Orantes, none of the blanks are filled
4
Westlake contends, for the first time in its reply brief, that
Orantes and Cardona’s declarations are inadmissible because
they were written in English and orally interpreted for Orantes
and Cardona before they signed. Westlake forfeited this
argument by failing to raise it in its opening brief. (Safeway
Wage & Hour Cases (2019) 43 Cal.App.5th 665, 687, fn. 9.)
8
in. Also similar to Orantes, the signatures contemplated on page
61 (and duplicate page 63) do not exist.
The Cardona EmPact booklet’s discussion of the C.A.R.E.
program begins at page 57. Like the Orantes EmPact booklet,
this section lists the C.A.R.E. program’s six steps followed by
more than a dozen numbered paragraphs across three pages
discussing mediation and arbitration. (The Orantes EmPact
booklet includes 13 paragraphs concerning mediation and
arbitration; the Cardona booklet adds a paragraph purporting to
waive the employee’s right to participate in a class or collective
action.) As in the Orantes booklet, the first express statement
that employees who do not opt out of the arbitration provision
waive their right to go to court appears in the eighth paragraph.
Also like the Orantes booklet, the C.A.R.E. section refers to a
subsequent page setting forth the opt-out procedure and
cautioning that employees who opt out of mediation and
arbitration forfeit no-fault separation pay and other benefits.
The signed, one-page EmPact form for Cardona is written
in Spanish. Like the one-page form for Orantes, it is a landscape-
oriented, two-column document with no page numbering that
bears the title “EMPACT.” It is signed by Cardona and a general
manager. The one-page form states “[o]ur signatures on page 68
of the EmPact confirm our mutual agreement to this philosophy,
objectives and to all rights and obligations included in this
EmPact contract . . . .” The EmPact booklet Westlake submitted
for Cardona does not include a page 68.
The signed, one-page EmPact form’s only mention of the
employee’s agreement to mediation and arbitration falls within a
paragraph beginning at the bottom of the first column and
continuing to the second: “I have read this EmPact and agree: [¶]
9
to comply with the objectives and regulations of the Four Seasons
Hotel Westlake Village; to accept the compensation and the
benefits that correspond to me; to use the C.A.R.E. system first
for all my complaints, even if I have exercised my right to exclude
C.A.R.E.’s mediation/arbitration clauses; and, unless I have
exercised my exclusion right, to use the mediation and
arbitration procedure described in C.A.R.E. as the exclusive
method to solve all disputes that I may have regarding the
termination of my employment (including forced resignation)
and/or claims due to discrimination at the workplace, hostility or
breach of salary or schedule.”5 There are no line breaks, bullet
points, or emphasis in this paragraph.
Notwithstanding references to numbered pages that are not
attached to it, Cardona’s one-page EmPact form does not
incorporate the EmPact booklet or any other document by
reference. The one-page form includes an integration clause
stating the “EmPact constitutes the entirety of the agreement
between the Four Seasons Westlake Village and me . . . .”
In a declaration submitted in support of her opposition to
Westlake’s motion, Cardona acknowledged her signature on the
one-page EmPact form, but denied having seen the EmPact
booklet. She recalled being told that she was required to sign the
one-page form as a condition of her employment.
5
Westlake had the Spanish document signed by Cardona
translated for purposes of this litigation.
10
C. The Trial Court’s Order Declining to Compel
Arbitration
The trial court denied Westlake’s motions as to both
Orantes and Cardona. Preliminarily, the trial court found the
Federal Arbitration Act (9 U.S.C. § 2 et seq.) (FAA) did not
govern its analysis because Westlake did not satisfy its burden to
demonstrate the requisite connection to interstate commerce.
The trial court then found that neither employee entered into an
enforceable agreement to arbitrate their claims against Westlake.
As to Orantes, the trial court held the signed one-page
EmPact form did not reflect a meeting of the minds as to
arbitration because it was undisputed Orantes could not read the
document and relied on a description that did not mention
arbitration. Cathcart’s assertion that the EmPact documents
were correctly explained to her, the court found, was not based on
personal knowledge. As to Cardona, the trial court concluded
there was no evidence that she ever received the unsigned
EmPact booklet and, standing alone, the signed one-page EmPact
form was no more than an “agreement to agree.” The trial court
emphasized, in particular, the one-page form’s representation
that “[o]ur signatures on page 68 of the EmPact [booklet] confirm
our mutual agreement” and Westlake’s failure to furnish these
signatures. As with Orantes, the court disregarded Cathcart’s
statement that the agreement was explained to her because it
was not based on personal knowledge.
As an alternative ground for denying Westlake’s motions,
the trial court found the purported arbitration agreements were
unconscionable. The trial court determined there was procedural
unconscionability because, notwithstanding employees’ right to
opt out of arbitration, the EmPact booklets describing the
11
material terms of the agreements are entirely in English and
there was no evidence either employee received a copy of the AAA
rules that would govern arbitration. The trial court found the
agreements to be substantively unconscionable because,
notwithstanding the mutual obligation to arbitrate disputes, the
agreement extended only to claims employees were likely to bring
against Westlake. The trial court also found that the pre-
mediation C.A.R.E. steps give Westlake a “free peek” at
employees’ claims and the arbitration rules give the arbitrator
mere discretion to award fees that a prevailing party would be
automatically entitled to under the Labor Code.
II. DISCUSSION
The trial court correctly determined Orantes and Cardona
did not enter into an enforceable agreement to arbitrate their
claims against Westlake. As we shall discuss, the trial court’s
well-founded concerns about the description of the one-page
EmPact form provided to Orantes that did not mention
arbitration are properly analyzed as fraud in the execution of the
agreement. As to Cardona, where the trial court focused
primarily on the form’s indication there would be signatures on
the separate booklet, we agree there was a lack of certainty
regarding a promise to arbitrate pursuant to the procedure
“described in C.A.R.E.” because the one-page EmPact form does
not define C.A.R.E. and does not incorporate any other document
by reference. Because we affirm the order on these grounds, we
do not address the trial court’s alternative holding that the
purported agreements are unconscionable.
12
A. Applicable Law
“Generally, the first step in reviewing an arbitration
dispute is to determine whether the question presented is subject
to the FAA or the [California Arbitration Act (Code Civ. Proc.,
§ 1280 et seq.)] because different rules apply under the two acts,
which in some cases leads to federal preemption.” (Aixtron, Inc.
v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 391.) The
“party seeking to enforce an arbitration agreement has the
burden of showing FAA preemption. [Citation.] For example, a
petitioner seeking an order to compel arbitration must show that
the subject matter of the agreement involves interstate
commerce.” (Lane v. Francis Capital Management LLC (2014)
224 Cal.App.4th 676, 687-688.) Westlake contends the FAA
preempts state law in this case because Four Seasons “operate[s]
properties nationally and internationally and serve[s] guests
from around the world.” No record citation accompanies this
assertion, however, and we see no such admissible evidence in
the record.
Regardless, the choice of law question is irrelevant for our
purposes. Even if Westlake’s bare assertion were sufficient to
establish that the purported agreements implicate interstate
commerce and must be construed according to the FAA, this
appeal raises a more fundamental issue—i.e., whether the
purported agreements are enforceable. The issue of FAA
preemption does not impact our analysis of this threshold
question because “we apply general California contract law to
determine whether the parties formed a valid agreement to
arbitrate their dispute. [Citations.]” (Avery v. Integrated
Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60 (Avery);
Banner Entertainment, Inc. v. Superior Court (1998) 62
13
Cal.App.4th 348, 357 [“the FAA does not apply until the existence
of an enforceable arbitration agreement is established under
state law principles involving formation, revocation and
enforcement of contracts generally”]; see also Pinnacle Museum
Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 246 (Pinnacle).)
B. The Purported Arbitration Agreements Are Not
Enforceable
“On petition of a party to an arbitration agreement alleging
the existence of a written agreement to arbitrate a controversy
and that a party to the agreement refuses to arbitrate that
controversy, the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists” (absent certain
exceptions not at issue here). (Code Civ. Proc., § 1281.2,
emphasis added.) Although California public policy strongly
favors arbitration and any doubts about the scope of an
arbitration agreement must be resolved in favor of arbitration
(EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311,
1320), the public policy favoring arbitration does not arise until
an enforceable agreement is established. (Baker v. Osborne
Development Corp. (2008) 159 Cal.App.4th 884, 892; accord
Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505
[“There is no public policy in favor of forcing arbitration of issues
the parties have not agreed to arbitrate”].) “In California,
‘[g]eneral principles of contract law determine whether the
parties have entered a binding agreement to arbitrate.’
[Citation.]” (Pinnacle, supra, 55 Cal.4th at 236.)
14
1. Orantes
The trial court found Orantes did not manifest her consent
to arbitration because the one-page EmPact form she signed was
in English, Westlake’s managers knew she could not read the
document, and she relied on a description of the document by
Westlake that did not mention arbitration.
As a general matter, a party that fails to read or is unable
to read an agreement the party signs may still be bound by that
agreement. (See, e.g., Pinnacle, supra, 55 Cal.4th at 236 [“An
arbitration clause within a contract may be binding on a party
even if the party never actually read the clause”]; Ramos v.
Westlake Services LLC (2015) 242 Cal.App.4th 674, 687 [“the fact
that [a party] signed a contract in a language he may not have
completely understood [does] not bar enforcement of the
arbitration agreement”] (Ramos); Randas v. YMCA of
Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [“As Mr.
Witkin states: ‘Ordinarily, one who accepts or signs an
instrument, which on its face is a contract, is deemed to assent to
all its terms, and cannot escape liability on the ground that he
has not read it. If he cannot read, he should have it read or
explained to him’”].)
The general rule does not apply, however, when one party
to an agreement reasonably relies on the other to describe the
contract and material terms are omitted. For example, in Ramos,
supra, 242 Cal.App.4th 674, the Court of Appeal considered
whether a Spanish-speaking consumer was bound by an
arbitration provision in an English sales contract when the seller
presented the consumer with a purported Spanish translation
that omitted the arbitration provision. (Id. at 686-687.) The
Court of Appeal held the defective translation amounted to fraud
15
in the execution of the document and concluded the arbitration
provision was unenforceable for lack of mutual consent. (Id. at
687-688 [“A contract is void for fraud in the execution where ‘“‘the
fraud goes to the inception or execution of the agreement, so that
the promisor is deceived as to the nature of his act, and actually
does not know what he is signing, or does not intend to enter into
a contract at all’”’”]; see also Rosencrans v. Dover Images, Ltd.
(2011) 192 Cal.App.4th 1072, 1080 [“‘Fraud in the execution’
means that the promisor is deceived as to the nature of his act,
and actually does not know what he is signing, or does not intend
to enter into a contract at all; since mutual assent is lacking, the
contract is void”].)
“In a fraud in the execution case, ‘California
law . . . requires that the plaintiff, in failing to acquaint himself
or herself with the contents of a written agreement before signing
it, not have acted in an objectively unreasonable manner. One
party’s misrepresentations as to the nature or character of the
writing do not negate the other party’s apparent manifestation of
assent[ ] if the second party had “reasonable opportunity to know
of the character or essential terms of the proposed contract.”’
([Rosenthal v. Great Western Fin. Securities Corp. (1996) 14
Cal.4th 394,] 423 [(Rosenthal)] . . . .) Thus, a ‘party’s
unreasonable reliance on the other’s misrepresentations,
resulting in a failure to read a written agreement before signing
it, is an insufficient basis, under the doctrine of fraud in the
execution, for permitting that party to avoid an arbitration
agreement contained in the contract.’ (Ibid.)” (Ramos, supra,
242 Cal.App.4th at 688-689.)
There was no such unreasonable reliance here. The trial
court found, appropriately based on substantial evidence, that
16
Westlake asked Orantes to execute the one-page EmPact form in
a language managers knew she did not understand and provided
a “basic description” of the form that mentioned only her
obligation not to disclose guests’ confidential information.6 While
this “basic description” presumably did not purport to be a
verbatim translation, it was nonetheless reasonable for Orantes
to rely on her employer to mention all the highlights, like an
agreement to arbitrate disputes. (See Rosenthal, supra, 14
Cal.4th 394, 428 [if credited, testimony of a non-English-speaking
plaintiff whose daughter translated salesperson’s recitation of
contract terms as he “glanced over” document sufficient to
establish reasonable reliance for purposes of fraud defense].)
Westlake contends, however, that the trial court
improperly excluded Cathcart’s testimony that “EmPact and its
meaning are explained to all new hires at Westlake at the time of
their hire,” including the arbitration provision. Although
Cathcart did not work for Westlake when Orantes was hired,
Westlake contends his testimony regarding the circumstances of
her execution of the one-page EmPact form is admissible under
the business records exception to the hearsay rule. (Evid. Code,
§ 1271.)
The argument fails because Cathcart’s declaration is not
itself a business record. (Evid. Code, § 1271 [defining a business
record as “a writing made as a record of an act, condition, or
event” that was (a) “made in the regular course of a business” and
6
Westlake suggests Orantes’s claim that she could not read
the one-page EmPact form is contradicted by the form’s
statement that “I have read EmPact.” It hardly needs to be said
that a statement in English is not probative of Orantes’s ability
to understand English.
17
(b) “made at or near the time of the act, condition, or event”].)
Westlake’s argument rests on the premise that a custodian is free
to expound on any matter relevant to the preparation of a specific
document regardless of a lack of personal knowledge simply
because a custodian of a business record must testify to its
identity and the mode of its preparation for the exception to
apply. (Evid. Code, § 1271, subd. (c).) The premise is wrong; that
is not how the business record exception works. The fact that a
custodian “need not have been present at every transaction to
establish the business records exception” (Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 322) does not mean they need not have been
present to testify about the circumstances of a particular
transaction. (See Evid. Code, § 702, subd. (a) [in general, “the
testimony of a witness concerning a particular matter is
inadmissible unless he has personal knowledge of the matter”].)
Westlake also contends Orantes’s account is inadmissible
under the parol evidence rule. This argument is raised for the
first time in Westlake’s reply brief and therefore forfeited. It is
also meritless. The parol evidence rule provides that the “[t]erms
set forth in a writing intended by the parties as a final expression
of their agreement . . . may not be contradicted by evidence of a
prior agreement or of a contemporaneous oral agreement” (Code
Civ. Proc., § 1856, subd. (a)), but it “does not exclude other
evidence of the circumstances under which the agreement was
made . . . or to establish illegality or fraud” (Code Civ. Proc.,
§ 1856, subd. (g)). Orantes’s declaration does not impermissibly
suggest an oral modification of the one-page EmPact form.
Rather, it establishes that she reasonably relied on Westlake’s
inaccurate, or at least materially incomplete, representation of
the form’s terms.
18
2. Cardona
Although Cardona was able to read the one-page EmPact
form she signed, the trial court ruled this form, standing alone,
did not create an enforceable agreement to arbitrate.
“‘Under California law, a contract will be enforced if it is
sufficiently definite (and this is a question of law) for the court to
ascertain the parties’ obligations and to determine whether those
obligations have been performed or breached.’ [Citation.] ‘To be
enforceable, a promise must be definite enough that a court can
determine the scope of the duty[,] and the limits of performance
must be sufficiently defined to provide a rational basis for the
assessment of damages.’ [Citations.] ‘Where a contract is so
uncertain and indefinite that the intention of the parties in
material particulars cannot be ascertained, the contract is void
and unenforceable.’ [Citations.] ‘The terms of a contract are
reasonably certain if they provide a basis for determining the
existence of a breach and for giving an appropriate remedy.’
[Citations.]” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th
199, 209.)
The one-page EmPact form that Cardona executed states
“[o]ur signatures on page 68 of the EmPact confirm our mutual
agreement to this philosophy, objectives and to all rights and
obligations included in this EmPact contract . . . .” As we have
already discussed, Cardona denies having received the EmPact
booklet and all of the signature lines in the booklet are blank. In
fact, the booklet does not even have a page 68. If the one-page
EmPact form said nothing else, we would need to say no more to
conclude the form is an unenforceable agreement to agree.
(Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th
795, 803 [“‘Preliminary negotiations or agreements for future
19
negotiations—so-called agreements to agree—are not enforceable
contracts’”].)
The one-page EmPact form also includes, however,
affirmative promises by the employee: “I have read the EmPact
contract and agree: . . . to use the C.A.R.E. system first for all my
complaints, even if I have exercised my right to exclude
C.A.R.E.’s mediation/arbitration clauses[,] and, unless I have
opted out, to use the mediation and arbitration procedure
described in C.A.R.E. as the exclusive method to solve all
disputes that I may have regarding the termination of my
employment (including forced resignation) and/or claims due to
discrimination at the workplace, hostility or breach of salary or
schedule.” The problem, however, is this adds nothing
meaningful.
The one-page EmPact form, itself titled “EMPACT,” does
not define the C.A.R.E. procedures. Nor does the one-page
EmPact form mention the EmPact booklet—much less
incorporate the booklet’s explanation of the C.A.R.E. procedures
by reference. Notwithstanding Cathcart’s inadmissible assertion
to the contrary,7 it is undisputed Cardona received and signed
only the one-page EmPact form. The bottom line is the one-page
EmPact form is not sufficiently definite to enable us to determine
the scope of the promise and to devise an appropriate remedy. “A
petition to compel arbitration is simply a suit in equity seeking
specific performance of a contract” (Aanderud v. Superior Court
(2017) 13 Cal.App.5th 880, 890), and a promise to use the
7
Although Cathcart worked for Westlake when Cardona was
hired, he states no basis for personal knowledge of which
documents were presented to her.
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“arbitration procedure described in C.A.R.E.,” without more, is
not specifically enforceable.8 (Avery, supra, 218 Cal.App.4th at 68
[“[I]t is not sufficient for the party seeking to compel arbitration
to show the parties generally agreed to arbitrate their disputes
by incorporating some arbitration provision into their contract.
Rather, the party must establish the precise arbitration provision
the parties incorporated into their agreement to govern their
disputes”].)
8
Westlake’s contention that a C.A.R.E. arbitration provision
has been enforced when the one-page EmPact form was included
within the EmPact booklet is factually inapposite. (Rodriguez v.
Four Seasons Hotels, Ltd. (S.D.N.Y. July 10, 2009, No. 09 Civ.
2864) 2009 WL 2001328, *4 [enforcing C.A.R.E. arbitration
provision where the plaintiff employee contended he could not “be
found to have agreed to arbitrate because the arbitration clause
was in a ‘booklet’ that was not identified anywhere, including on
the signature page, as an employment contract”], emphasis
added.)
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DISPOSITION
The trial court’s order denying Westlake’s motions to
compel arbitration is affirmed. Orantes and Cardona shall
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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