Michael Ashbey v. Archstone Property Management

concurring:

I concur in the result reached by the court’s memorandum disposition. I write separately to stress that my concurrence is based on the specific facts of this case, namely, the language of the acknowledgment Ashbey signed and the arguments Ashbey has raised concerning unconsciona-bility.

Read in context, the acknowledgment’s disclaimer of contractual rights refers only to the at-will employment relationship between Ashbey and Archstone. The acknowledgment is clear that by signing, Ashbey agreed “to adhere to all of the policies” contained in the employment manual, “including the Dispute Resolution Policy.” Under these circumstances, I agree that Ashbey entered into a binding agreement to arbitrate. Cf. Sparks v. Vista Del Mar Child & Family Servs., 207 Cal.App.4th 1511 , 145 Cal.Rptr.3d 318, 321-26 (2012) (holding no agreement to arbitrate formed where employment handbook wording suggested handbook was informational rather than contractual, and acknowledgment stated only, “the Handbook contains important information about [the employer’s] general personnel policies and on [the employee’s] privileges and obligations as an Employee ... I understand that I am governed by…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 12 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MICHAEL ASHBEY, No. 12-55912

Plaintiff - Appellee, D.C. No. 8:12-cv-00009-DOC-

RNB

v.

ARCHSTONE PROPERTY MEMORANDUM*

MANAGEMENT, INC., a corporation,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted March 4, 2014 Pasadena, California

Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

Defendant Archstone Communities LLC ('Archstone') appeals from the

district court's denial of its Motion to Compel Arbitration of Plaintiff Michael

Ashbey's claims. We reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. A party seeµing to compel arbitration has the burden under the Federal

Arbitration Act to show (1) the existence of a valid agreement to arbitrate and, if it

exists, (2) that the agreement to arbitrate…

MEMORANDUM *

Defendant Archstone Communities LLC (“Archstone”) appeals from the district court’s denial of its Motion to Compel Arbitration of Plaintiff Michael Ashbey’s claims. We reverse.

A party seeking to compel arbitration has the burden under the Federal Arbitration Act to show (1) the existence of a valid agreement to arbitrate and, if it exists, (2) that the agreement to arbitrate encompasses the dispute at issue. Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th Cir.2008). State law governs whether a valid agreement to arbitrate exists. Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31 , 129 S.Ct. 1896 , 173 L.Ed.2d 832 (2009). The parties do not dispute that California law applies to this case.

The district court erred in finding there was no valid agreement to arbitrate. California law permits parties to form contracts by incorporating other documents by reference; and “an employee may agree to arbitrate claims against his or her employer by signing an acknowledgment form that incorporates the employer’s employee handbook and the arbitration policy it contains.” Avery v. Integrated Healthcare Holdings, Inc., 218 Cal.App.4th 50 , 159 Cal.Rptr.3d 444, 457…