Trinity v. Life Ins. Co. of North America CA2/7

Filed 5/17/22 Trinity v. Life Ins. Co. of North America CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
FIONA TRINITY, B312302
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 20STCV10051)
LIFE INSURANCE COMPANY
OF NORTH AMERICA et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Michelle Williams Court, Judge. Affirmed.
Littler Mendelson, Tanja L. Darrow and Sheerin Mehdian
for Defendants and Appellants.
Shegerian & Associates, Carney R. Shegerian and Jill
McDonell for Plaintiff and Respondent.
_____________________
Fiona Trinity sued Life Insurance Company of North
America (LINA), Zenfira Kadzhikyan and Lucine Nikogosian
(collectively LINA parties) for discrimination, harassment and
wrongful termination. The LINA parties moved to compel
arbitration based on an agreement they alleged Trinity had
electronically acknowledged in 2014 during her employment with
LINA. The trial court denied the motion, finding the LINA
parties had not established the existence of an agreement to
arbitrate and, even if they had, the purported agreement could
not be enforced because it was procedurally and substantively
unconscionable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties and the Complaint
LINA, a subsidiary of Cigna Corporation, is an insurance
company that underwrites indemnity, disability, accident and
health insurance plans. Trinity worked for LINA as a claims
associate and then a senior claims associate from November 2008
until she was fired in January 2020. Kadzhikyan was Trinity’s
direct supervisor beginning in 2015. Trinity indirectly reported
to Nikogosian.
On March 12, 2020 Trinity filed this lawsuit alleging
15 causes of action, including for discrimination and harassment
based on disability by association and age in violation of
California’s Fair Employment and Housing Act (Gov. Code,
§ 12900 et seq.) and wrongful termination in violation of public
policy. The complaint sought economic, noneconomic and
punitive damages, as well as attorney fees.
2
2. The Motion To Compel Arbitration
On May 14, 2020 the LINA parties moved to compel
arbitration based on an arbitration provision in the Cigna
Corporation employee handbook that was distributed by email to
employees of all Cigna Corporation’s subsidiaries, including
LINA, in November 2013. The arbitration provision, which
appears on page 37 of the 44-page handbook, states, “By
accepting employment, compensation and/or benefits, you have
agreed to arbitrate serious employment-related disagreements
between you and the company. Notwithstanding any other
provision in this handbook, the duty to arbitrate employment-
related disagreements is a contractual obligation that both you
and the company are required to adhere to.” The provision
continues, “The arbitration process is administered by the
American Arbitration Association (AAA) using the company’s
Employment Dispute Arbitration policy and Employment Dispute
Arbitration Rules and Procedures. . . . [¶] . . . Copies of these
documents can be found in the ‘Workplace & Culture’ section of
the Your Cigna Life intranet under ‘Workplace Policies and
Programs.’ If you are unable to locate the information you are
seeking on the intranet, please contact the Your Cigna Life
Service Center . . . .” The final two pages of the handbook contain
a section titled, “Acknowledgement and Agreement,” which
states, “By returning to the Employee Handbook page on Your
Cigna Life and clicking the box next to the Acknowledgement
statement, then clicking the ‘Done’ button to record my
acceptance of these company policies: . . . I understand and agree
any dispute between Cigna and me arising out of or relating to
my candidacy for employment, my employment or termination of
my employment with Cigna . . . including claims of
3
discrimination or claims related to wage and hour issues, shall be
resolved under Cigna’s Employment Dispute Arbitration
Program, which includes final mandatory binding arbitration. I
also understand the Cigna Companies Employment Dispute
Arbitration Policy and the Cigna Companies Employment
Dispute Rules and Procedures form a legally enforceable contract
between Cigna and me.”1
In support of its motion to compel arbitration, the LINA
parties submitted the declaration of Michael Reagan, the
employee relations managing director of Cigna Corporation, who
1 The Employment Dispute Arbitration Policy and
Employment Dispute Arbitration Rules and Procedures were not
provided to employees contemporaneously with the handbook.
The policy generally contained much of the same information
provided in the handbook. The rules and procedures described
additional requirements, including time limits within which an
arbitration demand must be filed: “Any demand for arbitration
must be sent within the time limits that would apply to the
party’s claim if it were being resolved in court and not by
arbitration. . . . If the Arbitration is an appeal from [an internal
grievance process], the demand must be submitted within thirty
(30) calendar days after receiving the final decision in the
internal [process].” The rules and procedures also specified the
scope of discovery that would apply to the arbitration: “A party
will be entitled to take no more than three days of
depositions . . . . A party may not depose any employee of any
Cigna company who certifies in writing to the arbitrator that
he/she has no direct knowledge of the facts surrounding the
dispute.” In addition, “The scope, timing, and procedure for
discovery may be expanded, altered, amended or otherwise
changed to accommodate the circumstances of a particular
arbitration upon a showing of good cause as determined by the
arbitrator . . . .”
4
stated he was familiar with the personnel policies and practices
of Cigna Corporation and its subsidiaries, including LINA, and
was responsible for overseeing the roll-out of the 2013 employee
handbook and tracking employee acknowledgement of the
handbook. According to Reagan, “As part of the distribution of its
2013 Employee Handbook, an email was sent to Cigna employees
at each covered subsidiary, including LINA, in late 2013. Each
covered employee would have been required to log into the
website using the employee’s unique username and password.
Once logged into the website using these unique credentials, the
employee would have been prompted to the ‘Take Action’ section.
Employees were then required to make affirmative actions to
specifically acknowledge their agreement to be bound by these
policies, by marking the box next to ‘acknowledgement,’ and then
affirmatively clicking ‘Done.’” Reagan’s department would at
some point receive a report listing employees who had not
completed this process and those employees would be informed
their employment would be terminated if they did not execute the
acknowledgement. Attached to Reagan’s declaration was a two-
page document containing the same “Acknowledgement and
Agreement” language contained in the final two pages of the
handbook. Above that language the document stated, “Trinity,
Fiona, employee id 307893 has acknowledged the following and
clicked the box next to the Acknowledgement statement, then
clicked the ‘Done’ button on 06-JAN-2014.” Reagan stated this
record was created by “Cigna’s internal system” and it signified
Trinity had agreed to the policies in the handbook, including the
arbitration agreement, on January 6, 2014.
In addition to arguing Trinity had agreed to and was bound
by the arbitration provision of the employee handbook, the LINA
5
parties asserted any “gateway” issues concerning the arbitrability
of the dispute must be decided by an arbitrator rather than the
court. In support of this argument LINA relied on the following
language in the Employment Dispute Arbitration Rules and
Procedures: “The arbitrator will have discretion to resolve any
question or dispute that may arise before, during and after the
arbitration hearing.” The rules and procedures also state, “When
a party asserts in a timely fashion that the matter(s) raised by
any other party is (are) not arbitrable, the arbitrator will render
a decision on the arbitrability of that issue before the parties
conduct discovery or proceed with the claims on the merits. The
arbitrator shall have the power to rule on his/her own
jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration agreement.”
3. Trinity’s Opposition to the Motion
In opposition to the motion to compel arbitration, Trinity
contended she had never agreed to arbitrate claims against
LINA. She also argued that, even if the court found an
agreement to arbitrate had been entered, the arbitration
provision was procedurally and substantively unconscionable and
therefore unenforceable.
In a declaration submitted with her opposition, Trinity
stated, “I am certain that I never saw, reviewed, received,
submitted, agreed, consented, or signed—electronically, manually
or otherwise—Cigna’s Arbitration Agreement, Cigna Company’s
Employment Dispute Arbitration Policy, nor the Cigna’s
Employment Dispute Arbitration Rules and Procedures neither
in 2008 or in 2014 or ever thereafter. . . . [¶] . . . I never signed
off on any arbitration agreement, electronically or otherwise.”
Trinity also stated that, at the time she initially accepted
6
employment at LINA in 2008, “Had I been told that I would be
required to enter a contract waiving all my legal rights and
access to courts as a condition of my employment with
defendants, I would not have accepted that job.”
Trinity’s opposition also included excerpts from a
deposition taken of Reagan, who had been identified by LINA as
the person most knowledgeable regarding the arbitration
agreement applicable to LINA employees between 2014 and 2019.
In his deposition Reagan had provided additional detail
surrounding the dissemination of the employee handbook in
2013. He testified each employee was sent an email explaining
that he or she needed to “take action.” The email included a link
to the employee handbook, which the employee was required to
click on before he or she could access the intranet page containing
the required acknowledgement. Once the employee had opened
the handbook and clicked on the acknowledgement, he or she
would receive an email confirming their assent to the terms of
the handbook. Employees did not have the ability to negotiate
terms contained in the handbook; and, if they declined to agree,
their employment would be terminated.
Trinity requested the court hold an evidentiary hearing to
hear testimony from Trinity and Reagan before ruling on the
motion.
4. The LINA Parties’ Reply in Support of Their Motion
In reply the LINA parties submitted excerpts from Trinity’s
deposition in which she stated she did not recall receiving the
employee handbook in late 2013 or clicking the “Done” button on
7
the acknowledgement on January 6, 2014.2 The LINA parties
argued Trinity’s failure to recall clicking on the acknowledgement
was not sufficient to rebut Reagan’s testimony that the auto-
generated acknowledgement form containing Trinity’s name and
employee identification number indicated she had assented to the
terms of the employee handbook, including the agreement to
arbitrate disputes. The LINA parties also argued the arbitration
agreement was neither procedurally nor substantively
unconscionable and opposed the request for an evidentiary
hearing.
5. The Evidentiary Hearing
At a hearing on August 10, 2020 the court heard argument
regarding whether an evidentiary hearing was warranted. After
the court indicated it was inclined to hold an evidentiary hearing,
LINA’s counsel requested guidance from the court regarding
what testimony would be helpful, stating, “Both sides have
2 After Trinity testified she had no recollection of having
clicked the box on the acknowledgement statement on January 6,
2014, LINA’s counsel asked, “And again, is that something that
you just don’t have a recollection one way or the other, or are you
stating affirmatively that this never happened and it was—and
this is fraudulent?” After an objection from her counsel, Trinity
answered, “No, I do not recall clicking the ‘Done’ box.” LINA’s
counsel again asked, “Are you denying that that happened, or you
simply don’t recall it?” After an additional objection from
Trinity’s counsel, Trinity responded, “I don’t recall clicking the
‘Done’ button.” LINA’s counsel tried again, “Is it something that
you just don’t recall what you did in January of 2016 [sic], or are
you denying that you did it?” Trinity’s counsel objected and, after
some colloquy between counsel, Trinity said, “I don’t. I just don’t
recall.”
8
conducted depositions. We both submitted deposition testimony
and declarations. . . . Because there are conflicting facts in terms
of whether Ms. Trinity executed the acknowledgement and
agreement [in] January 2014, I’m not entirely certain what would
be most beneficial to the court in terms of establishing the
credibility issue that you want to have determined for the
evidentiary hearing.” The court explained, “Because of the fact
that there has been some discovery done, I need to be able to
assess the credibility of the witnesses, in particular to make a
determination as to whether or not there was an agreement to
arbitrate.”
The court granted Trinity’s request for an evidentiary
hearing, which was held on January 15, 2021. Both Reagan and
Trinity testified. Reagan’s testimony was generally consistent
with his declaration and deposition testimony regarding the
process by which LINA employees received and acknowledged the
employee handbook. He confirmed that, after an employee
clicked the button agreeing to the terms outlined in the
handbook, an email would be sent to the employee confirming his
or her action. When asked whether such an email exists
confirming Trinity agreed to the terms in the 2013 handbook,
Reagan answered, “I recall that they were looked for, and I don’t
believe they were found. If she deleted them, they’d be gone.
They’re so old, they may not be attainable.” In regard to the
auto-generated confirmation pages indicating the handbook had
been acknowledged by a particular employee, Reagan testified he
did not know the name of the computer program that generated
the confirmations, where or how they were stored, who had
access to the program or how a particular record could be
accessed or retrieved.
9
Trinity testified in the afternoon session of the hearing.
Her testimony is not in the record on appeal because no court
reporter was present and the LINA parties have not provided an
agreed or settled statement.3
6. The Court’s Order Denying the Motion To Compel
Arbitration
After taking the matter under submission, on April 21,
2021 the trial court denied the LINA parties’ motion to compel
arbitration, finding the LINA parties had failed to prove Trinity
agreed to the arbitration provision in the employee handbook.
The court emphasized that, despite Reagan’s testimony an email
confirmation would have been sent to Trinity upon her
agreement to the handbook’s terms, no such email was produced
3 Trinity has moved to dismiss the appeal based on the LINA
parties’ failure to include an agreed or settled statement
containing a description of Trinity’s testimony—indeed, the LINA
parties’ opening and reply briefs fail to even mention that Trinity
testified at the hearing. In its opposition to the motion the LINA
parties argue the testimony is immaterial because there are no
disputed issues of fact upon which Trinity’s testimony could bear,
a somewhat surprising (not to mention disingenuous) contention
given LINA’s counsel’s observation in August 2020 that there
were “conflicting facts” and the trial court’s statement it needed
to make a credibility determination. The LINA parties also argue
Trinity’s testimony during the hearing is immaterial because
there is already evidence in the record that Trinity denied
agreeing to arbitrate her claims. The LINA parties have cited to
no authority, nor are we aware of any, that excuses inclusion in
the appellate record of material evidence because it is arguably
cumulative. While the LINA parties’ omissions and lack of
candor are troubling, we exercise our discretion to address the
appeal on the merits and decline to dismiss.
10
by LINA, nor could Reagan confirm whether such an email
existed. The court further found the agreement would have been
unenforceable even if it had been entered because it was
procedurally and substantively unconscionable.
DISCUSSION
1. Governing Law and Standard of Review
Code of Civil Procedure section 1281.2 requires the
superior court to order arbitration of a controversy “[o]n 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 such controversy . . . if it
determines that an agreement to arbitrate the controversy
exists.” As the language of this section makes plain, the
threshold question presented by every petition to compel
arbitration is whether an agreement to arbitrate exists.
(American Express Co. v. Italian Colors Restaurant (2013)
570 U.S. 228 [it is an “overarching principle that arbitration is a
matter of contract”]; Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236
(Pinnacle) [“‘“a party cannot be required to submit to arbitration
any dispute which he [or she] has not agreed so to submit”’”];
Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 787
[“[t]here is a strong public policy favoring contractual arbitration,
but that policy does not extend to parties who have not agreed to
arbitrate”].)
The party seeking to compel arbitration bears the burden of
proving by a preponderance of the evidence an agreement to
arbitrate a dispute exists. (Pinnacle, supra, 55 Cal.4th at p. 236;
Rosenthal v. Great Western Fin. Securities Corp. (1996)
11
14 Cal.4th 394, 413; Nixon v. AmeriHome Mortgage Co., LLC
(2021) 67 Cal.App.5th 934, 946.) To carry this burden of
persuasion the moving party must first produce “prima facie
evidence of a written agreement to arbitrate the controversy.”
(Rosenthal, at p. 413; accord, Gamboa v. Northeast Community
Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) “If the moving
party meets its initial prima facie burden and the opposing party
disputes the agreement, then . . . the opposing party bears the
burden of producing evidence to challenge the authenticity of the
agreement.” (Gamboa, at p. 165; accord, Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal, at
p. 413.) If the opposing party produces such evidence, then “the
moving party must establish with admissible evidence a valid
arbitration agreement between the parties.” (Gamboa, at p. 165.)
Despite the shifting burden of production, “[t]he burden of
proving the agreement by a preponderance of the evidence
remains with the moving party.” (Id. at pp. 165-166; Rosenthal,
at p. 413.)
Absent conflicting evidence, we review de novo the trial
court’s interpretation of an arbitration agreement, including the
determination whether it is enforceable on unconscionability
grounds. (Rosenthal v. Great Western Fin. Securities Corp.,
supra, 14 Cal.4th at p. 413; Gamboa, supra, 72 Cal.App.5th at
p. 166; Nyulassy v. Lockheed Martin Corp. (2004)
120 Cal.App.4th 1267, 1277.)
Where the trial court’s ruling is based on a finding of fact,
we review the decision for substantial evidence. (Gamboa, supra,
72 Cal.App.5th at p. 166; Fabian v. Renovate America, Inc. (2019)
42 Cal.App.5th 1062, 1066 (Fabian).) Under this deferential
standard, “‘[A]ll factual matters will be viewed most favorably to
12
the prevailing party [citations] and in support of the judgment.’”
(Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60;
accord, Western States Petroleum Assn. v. Superior Court (1995)
9 Cal.4th 559, 571; see Nissan Motor Acceptance Cases (2021)
63 Cal.App.5th 793, 818 [“We must not review the evidence to
determine whether substantial evidence supports the losing
party’s version of the evidence. Instead, we must determine if
there is any substantial evidenced, contradicted or
uncontradicted, to support the trial court’s findings”].)
However, “[w]hen, as here, the court’s order denying a
motion to compel arbitration is based on the court’s finding that
petitioner failed to carry its burden of proof, the question for the
reviewing court is whether that finding was erroneous as a
matter of law.” (Fabian, supra, 42 Cal.App.5th at p. 1067; see
also Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838 [“‘where the issue on appeal turns on a
failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the
appellant as a matter of law’”].) “‘Specifically, the question
becomes whether the appellant’s evidence was
(1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Dreyer’s Grand Ice Cream, Inc., at p. 838; accord, Phipps v.
Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 333; Fabian, at
p. 1067; Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th
972, 978-979; see In re R.V. (2015) 61 Cal.4th 181, 201 [where
party fails to meet its burden on an issue in the trial court, “the
inquiry on appeal is whether the weight and character of the
13
evidence . . . was such that the [trial] court could not reasonably
reject it”].)
2. The Trial Court Had Authority To Determine Whether
the Parties Agreed To Arbitrate
As discussed, the Cigna arbitration employment dispute
rules and procedures referred to in the employee handbook stated
the arbitrator “will have discretion to resolve any question or
dispute that may arise before, during and after the arbitration
hearing” and “shall have the power to rule on his/her own
jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration agreement.” Based
on this language the LINA parties contend the trial court had no
authority to determine whether Trinity agreed to the arbitration
provision in the handbook. Rather, they argue, any dispute
regarding whether an agreement to arbitrate exists must be
decided by the arbitrator.
The LINA parties are generally correct that “parties may
agree to have an arbitrator decide not only the merits of a
particular dispute but also ‘“gateway” questions of “arbitrability,”
such as whether the parties have agreed to arbitrate or whether
their agreement covers a particular controversy.’” (Henry Schein,
Inc. v. Archer & White Sales, Inc. (2019) __ U.S. __ [139 S.Ct. 524,
529 (Henry Schein, Inc.)]; accord, Rent-A-Center, West, Inc. v.
Jackson (2010) 561 U.S. 63, 68-69; Banc of California, National
Assn. v. Superior Court (2021) 69 Cal.App.5th 357, 366-367.) “To
be sure, before referring a dispute to an arbitrator, the court
determines whether a valid arbitration agreement exists.
See 9 U.S.C. § 2. But if a valid agreement exists, and if the
agreement delegates the arbitrability issue to an arbitrator, a
14
court may not decide the arbitrability issue.” (Henry Schein, Inc.,
at p. 530.)
Accordingly, “when the parties have clearly and
unmistakably agreed to delegate questions regarding the validity
of the arbitration clause to the arbitrator[,] . . . [those] delegation
clauses are generally enforceable according to their terms.”
(Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018)
22 Cal.App.5th 1096, 1108; see AT&T Technologies, Inc. v.
Communications Workers of America (1986) 475 U.S. 643, 649
[“[u]nless the parties clearly and unmistakably provide
otherwise, the question of whether the parties agreed to arbitrate
is to be decided by the court, not the arbitrator”]; Mendoza v.
Trans Valley Transport (2022) 75 Cal.App.5th 748, 766 [same].)
Thus, when a party “is not denying that it agreed to the
arbitration clause, but instead it is claiming some other defense
to enforcement of the arbitration clause—e.g., illegality or fraud
in the inducement—then the court must enforce the ‘arbitrability’
portion of the arbitration clause by compelling the parties to
submit that defense to arbitration.” (Bruni v. Didion (2008)
160 Cal.App.4th 1272, 1287; accord, Banc of California, at p. 369
[delegation provision will be enforced when parties dispute
whether claims “fell within the scope of a specific contract”].)
Notwithstanding a provision that clearly and unmistakably
delegates arbitrability issues to the arbitrator, if a party “is
claiming that it never agreed to the arbitration clause at all—
e.g., if it is claiming forgery or fraud in the factum—then the
court must consider that claim.” (Bruni v. Didion, supra,
160 Cal.App.4th at p. 1287; accord, Mendoza v. Trans Valley
Transport, supra, 75 Cal.App.5th at p. 774 [“despite the existence
of a broadly worded delegation clause such as that before us,
15
courts have held that certain gateway issues are for a court to
decide, including whether the parties entered into an agreement
to arbitrate at all”]; Najarro v. Superior Court (2021)
70 Cal.App.5th 871, 879 [“we must enforce the delegation clause
unless we conclude that no agreement between the contracting
parties ever existed due to a lack of mutual assent”]; see also
Banc of California, National Assn. v. Superior Court, supra,
69 Cal.App.5th at p. 366, fn. 4 [“under either the [Federal
Arbitration Act] or the [California Arbitration Act], it was for the
trial court in the first instance to decide whether the parties
agreed to arbitrate their dispute”]; Ahlstrom v. DHI Mortgage
Company, Ltd., L.P. (9th Cir. 2021) 21 F.4th 631, 635
[“[Defendant] argues that, like issues of validity and arbitrability,
parties may also agree to delegate issues of formation to an
arbitrator. We do not agree. [Citations.] . . . As the Supreme
Court has recognized, a court should order arbitration only if it is
convinced an agreement has been formed”]; Williams v. Medley
Opportunity Fund II, LP (3rd Cir. 2020) 965 F.3d 229, 237, fn. 7
[rejecting defendants’ contention that Henry Schein, Inc., supra,
139 S.Ct. 524 “establishes a categorical rule that, when an
agreement includes a delegation clause, ‘a court possesses no
power to decide the arbitrability issue.’ . . . Henry Schein ‘did not
change . . . the rule that courts must first decide whether an
arbitration agreement exists at all’”].)
This approach is consistent with the principle that
arbitration is a matter of contract—a party cannot be compelled
to arbitrate pursuant to a contract to which the party never
agreed. (See Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th
233, 254 [“[o]ne such logical condition precedent [to arbitration] is
whether, in fact, the parties agreed to arbitrate at all; it makes
16
no sense to compel parties to go before an arbitrator without first
determining they agreed to do so”]; Bruni, at p. 1291 [when party
asserts it never agreed to arbitration provisions, it “cannot be
required to arbitrate anything—not even arbitrability—until a
court has made a threshold determination that [it] did, in fact,
agree to arbitrate something”].) Accordingly, the trial court did
not err by deciding whether Trinity had entered into an
arbitration agreement rather than requiring her to arbitrate the
issue.
3. The Evidence Did Not Compel a Finding That Trinity
Agreed To Arbitrate
Insisting the auto-generated acknowledgement dated
January 6, 2014 is undisputed and constitutes conclusive
evidence Trinity’s unique username and password were used to
agree electronically to the terms of the arbitration agreement in
the Cigna employee handbook, the LINA parties argue the trial
court erred in ruling there was no agreement to arbitrate. Yet
whether the auto-generated acknowledgement presented by the
LINA parties was, in fact, generated as a result of Trinity’s
actions was precisely what was at issue before the trial court:
Trinity stated unequivocally in her declaration that she never
saw or consented to the arbitration agreement.
The LINA parties attempt to negate the factual dispute
created by Trinity’s testimony by arguing it was “directly
contradicted” by Trinity’s deposition testimony in which she
stated she did not recall whether she had clicked on the “Done”
button on the handbook acknowledgement. The LINA parties’
argument is doubly flawed.
First, Trinity’s testimony that she “did not recall clicking
the ‘Done’ box” did not necessarily contradict her earlier
17
testimony she never did so—it is not inconsistent that having
failed to do something, one would have no direct recollection of
not doing it. Moreover, any possible inconsistency between
Trinity’s declaration and deposition testimony was properly
resolved by the trial court. The court considered all the evidence,
including, critically, Trinity’s live testimony during the
evidentiary hearing, the contents of which LINA elected not to
provide to us, and found credible Trinity’s statement she never
agreed to arbitrate. We may not reweigh the evidence and are
bound by the trial court’s credibility determinations. (Tribeca
Companies, LLC v. First American Title Ins. Co. (2015)
239 Cal.App.4th 1088, 1102; Fabian, supra, 42 Cal.App.5th at
p. 1067.)
Second, even if her deposition testimony was understood as
something less than an unequivocal denial of entering the
agreement, here, in the absence of a signed agreement (either
handwritten or electronic), Trinity’s testimony that she did not
recall agreeing to arbitrate by electronically clicking a “Done”
box, coupled with her declaration that she would not have
accepted the job in 2008 had she known of the arbitration clause
and her unknown testimony at the hearing,4 was sufficient to
4 In the absence of any record of Trinity’s testimony at the
evidentiary hearing, we must presume that testimony supports
the court’s findings. (See Shenefield v. Shenefield (2022)
75 Cal.App.5th 619, 633, fn. 12 [“[w]hen there is no reporter’s
transcript and no error is evident from the face of the appellate
record, we presume that the unreported trial testimony would
demonstrate absence of error”]; Estate of Fain (1999)
75 Cal.App.4th 973, 992 [“Where no reporter’s transcript has
been provided and no error is apparent on the face of the existing
appellate record, the judgment must be conclusively presumed
18
carry her burden in opposing a motion to compel. (See Gamboa,
supra, 72 Cal.App.5th at p. 167 [“Gamboa likewise met her
burden on the second step by filing an opposing declaration,
saying she did not recall the agreement and would not have
signed it if she had been aware of it”]; see also Ruiz v. Moss Bros.
Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846 [“[t]hough Ruiz
did not deny that the electronic signature on the 2011 agreement
was his, he claimed he did not recall signing the 2011 agreement
and would not have signed it had it been presented to him. In
the face of Ruiz’s failure to recall signing the 2011 agreement,
Moss Bros. had the burden of proving by a preponderance of the
evidence that the electronic signature was authentic”].)
Trinity having carried her burden to challenge the
authenticity of the agreement, the burden shifted back to the
LINA parties to prove by a preponderance of the evidence that a
contract was formed. The court did not err in finding they had
failed to do so. The LINA parties’ evidence was neither
uncontradicted nor of such character and weight as to leave no
room for a judicial determination that it was insufficient. Despite
Reagan’s testimony the auto-generated acknowledgement
indicated Trinity had used her unique credentials to
electronically agree to the employee handbook, Reagan could not
explain the apparent nonexistence of the email that should have
been sent to Trinity confirming her action. Reagan testified
correct as to all evidentiary matters. To put it another way, it is
presumed that the unreported trial testimony would demonstrate
the absence of error. [Citation.] The effect of this rule is that an
appellant who attacks a judgment but supplies no reporter’s
transcript will be precluded from raising an argument as to the
sufficiency of the evidence”], italics omitted.)
19
Trinity may have deleted the email or it could have been too old
to be retrieved. However, those statements were mere
speculation—Reagan professed no knowledge of the company’s
document retention policies or backup procedures for deleted
emails. Reagan’s testimony was further undermined by the fact
he had no understanding of how the acknowledgement records
were generated, stored or retrieved, including who had access to
the records and whether they could be manually created or
altered. In other words, there was no testimony that Trinity’s
own actions were the exclusive way an acknowledgement form
bearing her credentials could be created. (See Fabian, supra,
42 Cal.App.5th at p. 1070 [movant failed to prove employee
electronically signed arbitration agreement where witness “did
not suggest how the electronic signature could have only been
placed on the Contract by [plaintiff]”]; Ruiz v. Moss Bros. Auto
Group, Inc., supra, 232 Cal.App.4th at p. 844 [same].) On this
record, the evidence does not compel a finding that Trinity agreed
to arbitrate her claims.
DISPOSITION
The order denying the motion to compel arbitration is
affirmed. Trinity is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
20