I.

INTRODUCTION

Juan Carlo Joyce filed a complaint against Volt Management Corp. (Volt), Solar

Turbines Incorporated (Solar), and Greg Robertson (collectively "appellants"), alleging

workplace harassment based on sexual orientation, among other causes of action.

Appellants filed a petition to compel arbitration. The trial court denied the petition on the

ground that appellants had not established that Joyce manifested his assent to be bound

by a valid arbitration agreement.

On appeal, appellants claim that the trial court erred in denying the petition,

providing three arguments in support of this claim. First, appellants contend that Joyce

assented to an arbitration agreement by signing an employment agreement with Volt that

contained an arbitration provision. We conclude that the trial court did not err in finding

that appellants failed to establish that Joyce signed the employment agreement.

Appellants also claim that Joyce assented to an arbitration agreement by signing an

acknowledgement attesting to his receipt and review of an employee handbook that

contained an arbitration agreement. We conclude that the trial court properly determined

that the arbitration agreement in the employee handbook was not enforceable because it

was expressly superseded by a separate employee orientation guide. Finally, citing Craig

v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420 (Craig), appellants claim that

Joyce implicitly assented to an arbitration agreement by continuing to work at Volt after

becoming aware of the existence of Volt's arbitration agreement. We reject this

argument, based on two cases that have concluded that Craig is "inapposite" where, as in

2 this case, the agreement that contains the arbitration provision requires that the employee

sign the agreement in order for it to be effective. (Mitri v. Arnel Management Co. (2007)

157 Cal.App.4th 1164, 1172 (Mitri); see Gorlach v. Sports Club Co. (2012) 209

Cal.App.4th 1497, 1509 (Gorlach).) Accordingly, we affirm the trial court's order

denying appellants' petition to compel arbitration.1

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Joyce's complaint

In October 2014, Joyce filed a complaint that contained the following allegations.

Joyce is a gay man and is in a same sex marriage. In June 2012, Volt hired him to work

as a temporary employee assigned to work for Solar.2 Joyce married his longtime

partner on July 10, 2013. Shortly thereafter, Joyce revealed his sexual orientation and

same-sex marital status to Robertson, his direct supervisor.

In the wake of these revelations, Joyce was "subjected to consistent, unwelcome,

harassing, inappropriate and derogatory comments regarding [his] sexual

orientation . . . ." Robertson engaged in several discriminatory acts against Joyce based

on his sexual orientation including: denying him employment opportunities, issuing

1 In light of our affirmance of the trial court's order on these grounds, we need not consider the numerous alternative arguments for affirmance that Joyce offers in his brief. 2 Although Joyce's complaint alleged that "defendants" hired him, Joyce stated in a declaration that he worked for Volt beginning in 2012, that Volt is a "temporary staffing and recruiting agency that hires employees on an assignment basis," and that he had worked for Solar on assignment from Volt. 3 unwarranted negative performance appraisals, and referring to Joyce in a "hostile,

insulting, and aggressive manner . . . ."

As a result of this conduct, Joyce sought out other employment opportunities that

did not require Robertson's oversight. In early February 2014, Joyce accepted an offer

with Solar to work as an engineer under a different manager. Solar instructed Joyce to

resign from his position with Volt. Joyce submitted his resignation to Volt on or about

February 10, but continued working until February 26.

On February 25, a fellow employee reported to Joyce that her manager had made

sexually harassing comments to her. Joyce reported the manager's conduct to a regional

manager because he reasonably believed that such conduct was illegal and violated

company policies. On February 28, Solar terminated Joyce's employment.

Joyce 's complaint contained seven causes of action: harassment based on sexual

orientation and intentional infliction of emotional distress (against all defendants);

discrimination based on sexual orientation, and failure to prevent harassment,

discrimination and/or retaliation (against Volt and Solar); and retaliation, wrongful

termination, and negligent training and supervision (against Solar).

B. Appellants' petition to compel arbitration

Appellants filed a petition to compel arbitration pursuant to Code of Civil

Procedure section 1281.2 (Section 1281.2).3 In a supporting brief, appellants stated that

Volt is a contingent staffing provider that has a contract with Solar to provide temporary

3 Volt filed the petition, and Solar and Robertson joined in the petition. 4 staffing. Appellants contended that on May 21, 2012, Joyce signed a one-page

employment agreement (Employment Agreement) with Volt that contained an arbitration

provision (Employment Agreement Arbitration Provision) that provides as follows:

"AGREEMENT TO ARBITRATE DISPUTES: Any disputes arising out of or relating to the actions of Volt or any assignments or termination of any assignment, and/or disputes arising out of or related to the actions of Volt's Clients (or Clients' employees), shall be settled by final and binding arbitration, pursuant to the Federal Arbitration Act, in accordance with the rules of the American Arbitration Association (www.adr.org), in the state where you were employed. The arbitrator may award attorney fees and/or costs to the prevailing party, in accordance with the law. Judgment upon the arbitration award may be entered in any court having jurisdiction. Volt and you hereby waive our respective rights to trial by jury and any cause of action or defense that we may have against each other or against any Client of Volt. This agreement to arbitrate disputes does not prevent you from filing a charge or claim with any governmental administrative agency as permitted by applicable law." (Boldface omitted.)

Appellants also stated that, at the time he was hired, Joyce signed an

acknowledgment verifying his receipt of an employee handbook (Employee Handbook)

containing an arbitration provision (Handbook Arbitration Provision) that is substantially

similar to the Employment Agreement Arbitration Provision.

Appellants contended that Joyce and Volt "entered into a valid, binding, and

mutual arbitration provision contained in both the one-page Employment Agreement and

the Employee Handbook." Appellants further argued that an employee may manifest his

assent to an arbitration agreement by way of "continued employment." Appellants

argued:

"Joyce signed the Employment Agreement confirming that he read and agreed to be bound by the arbitration provision. [Citations.]

5 Joyce then continued his employment until his resignation in February 2014. [Citation.] These facts satisfy the offer, acceptance, and consideration requirements for contract formation." (Fn. omitted.)

Appellants argued that Solar and Robertson could enforce the arbitration provision

as third-party beneficiaries of the Employment Agreement Arbitration Provision and the

Handbook Arbitration Provision.

In support of the petition, Volt lodged several exhibits, including a copy of the

Employment Agreement (Def. Exhibit 1), a copy of the Employee Handbook, and a copy

of Joyce's signed Employee Handbook acknowledgement form.

Volt also lodged a declaration from its director of human resources, Kendra

Bellman. Bellman stated that she had reviewed Joyce's personnel file, which was

maintained in the regular scope of Volt's business. Bellman further stated:

"Volt hired Joyce to work as a Controls Manufacturing Engineer on assignment to Solar in June 2012. It is Volt's policy, practice and procedure to have all employees complete and execute an Employment Agreement upon hiring. The Employment Agreement contains an arbitration provision in paragraph 8. . . .[4]

"5. On May 21, 2012, Joyce . . . signed an acknowledgment verifying his receipt of the Volt Employee Handbook."

4 We omit that portion of Bellman's declaration in which she stated that "Joyce signed the one-page Employment Agreement containing the arbitration provision on May 21, 2012." The trial court sustained Joyce's objection to that portion of the declaration on the ground that Bellman lacked personal knowledge of this fact, and Volt raises no claim as to this evidentiary ruling on appeal. 6 C. Joyce's ex parte application

Prior to filing an opposition to the petition, Joyce filed an ex parte application

seeking an order permitting Joyce to depose Casey Wood, the individual who signed the

Employment Agreement on behalf of Volt, and permitting Joyce to depose Volt's person

most qualified concerning the existence of any arbitration agreements between Joyce and

Volt. In a brief in support of the application, Joyce argued that he "dispute[d] the

existence of any arbitration agreement covering his claims . . . ."

Volt filed an opposition to Joyce's application. Volt argued that its filing of a

petition to compel arbitration mandated a stay of all proceedings in the litigation pending

a decision on the petition. In addition, Volt argued that Joyce had not demonstrated good

cause justifying the taking of the depositions. In support of this contention, Volt argued

Joyce "does not state that he intends to make any argument that he did not actually sign

the agreement."

After a hearing, the trial court denied Joyce's application without prejudice.

D. Joyce's opposition

Joyce filed an opposition to the petition to compel in which he argued that

appellants failed to meet their burden of establishing the existence of a binding and

enforceable arbitration agreement. Joyce stated that he disputed signing the Employment

7 Agreement, and contended that he had "never seen the Employment Agreement," until

the commencement of this litigation.5

In support of his contention that he had not signed the Employment Agreement,

Joyce argued that he requested his personnel file in March 2014 and that the Employment

Agreement was not provided to him at that time. Joyce also maintained that, although his

counsel had requested his personnel file in June 2014, Volt did not produce the

Employment Agreement until November 2014, after the filing of this lawsuit. In

addition, Joyce noted that Volt failed to submit an affidavit from Wood and had refused

to produce Wood for a deposition, despite the fact that the Employment Agreement bore

her signature. Joyce also argued that Wood had not been assigned to be Joyce's

representative for any portion of his employment with Volt and Joyce did not recall

having signed any documents in her presence. Finally, Joyce maintained that there were

a number of "inconsistencies and irregularities," with respect to the Employment

Agreement that appellants offered in support of their petition, including that information

on the form pertaining to his job title and supervisor was incorrect.

With respect to the Employee Handbook, Joyce acknowledged that he had signed

an acknowledgement form attesting to his receipt of the handbook, but contended that he

did "not receive the actual handbook referenced in the Acknowledgment." Joyce argued

further that, even assuming he had received the Employee Handbook, this handbook had

been superseded by an orientation guide, the Volt On-Site at Solar Turbines New

5 Joyce also stated that he had not signed a separate arbitration agreement contained in Volt's employment application agreement (Employment Application). 8 Employee Orientation Guide (Orientation Guide), which stated, "I understand that this

[Orientation Guide] supersedes any prior handbooks or policy manuals issued by

[Volt] . . . ." (Italics omitted.) Thus, Joyce argued that the Handbook Arbitration

Provision was not an enforceable arbitration agreement.

Joyce lodged his own declaration as well as a declaration from his counsel.

Among other statements supporting the claims made in his opposition, Joyce stated the

following in his declaration:

"I received, but do not recall signing, Volt's arbitration agreement contained in the application documents I initially submitted to Volt. . . .

"8. After the instant motion was filed by [appellants], I reviewed 'Defendant's Exhibit 1 - Employment Agreement.' I had never seen Defendant's Exhibit 1 - Employment Agreement until after I filed the instant lawsuit."

With respect to the Employee Handbook, Joyce admitting having signed an

acknowledgment form attesting to his receipt of the handbook, but contended that he had

not actually received the handbook. Joyce also stated the following:

"Even if I had received the May 21, 2012 [Employee Handbook], Volt and Solar subsequently issued an entirely different [h]andbook to me on June 4, 2012 [(Orientation Guide)] that expressly supersedes any prior handbook."

Joyce also lodged several documents in opposition to the petition, including the

unsigned Employment Application that contained an arbitration agreement (Employment

Application Arbitration Agreement) and the Orientation Guide referred to in his

declaration and opposition.

9 E. Appellants' replies

Volt filed a reply in which it argued that Joyce had signed the Employment

Agreement that contained an arbitration provision. Volt argued that the signed

Employment Agreement had been found in Joyce's personnel file and urged the trial court

to compare the signature on the Employment Agreement with an admitted signature of

Joyce's. Volt also argued that Joyce "does not dispute the signature is his." (Italics

omitted.) In addition, Volt argued that Joyce had admitted that he had signed an

acknowledgement of the Employee Handbook, and noted that the acknowledgement

stated, " 'I agree to arbitrate any and all disputes related to my employment or

assignment(s) with Volt, as discussed in this [Employee Handbook].' " Volt further

contended that the Orientation Guide did not "[r]escind[ ]" the prior Employee Handbook

because the two documents "served distinct functions," and that it would be "illogical" to

interpret the Orientation Guide as replacing policies outlined in the Employee Handbook.

Volt further contended that Joyce's arguments suggesting that the Employment

Agreement had been altered were misleading. In particular, Volt argued that it was

"irrelevant" that the Employment Agreement may have contained some "collateral

details" that were inaccurate. Volt also argued that Joyce had assented to arbitration

because he "admit[ted] . . . receiv[ing] Volt's arbitration policy when he applied at Volt

and that he then accepted and continued his employment with Volt for two years."

Solar and Robertson filed a separate reply in which they raised arguments not

relevant to the issues addressed in this opinion.

10 F. The trial court's order denying the petition

After hearing argument, the trial court entered an order denying the petition. The

court reasoned in relevant part:

"[Appellants] submit an Employment Agreement dated May 21, 2012 that contains [Joyce's] signature. [Citation.] The Employment Agreement requires binding arbitration . . . . [¶] . . . [¶] [Joyce] denies ever seeing the Employment Agreement until after he filed this lawsuit. [Citation.] [Appellants] bear the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. [Citation.] [Joyce] has raised significant questions regarding the document's authenticity. When he was hired, [Joyce] received but did not sign a different document that contained an arbitration provision. [Citation.] [Joyce] requested his personnel file a few days after his termination but he was not given the signed Employment Agreement. [Citation.] [Joyce's] counsel was not provided the signed agreement until mid-November 2014. [Citation.] The Employment Agreement references a job that [Joyce] was never assigned to, and he does not recall the representative who allegedly signed on behalf of Volt (Casey Wood). [Citation.] When [Joyce] sought to obtain more information regarding the agreement, [appellants] refused to allow [Joyce] to depose Wood. [Citation.]

"[Appellants] also rely on an arbitration provision in the [Employee Handbook]. [Joyce] signed an Acknowledgment stating he received and reviewed the [Employee Handbook]. [Citations.] The Acknowledgment requires arbitration 'as discussed in this [Employee Handbook].' However, [Joyce] never received the [Employee Handbook]. [Citation.] He did, however, receive [the Orientation Guide] at an orientation on June 4, 2012. [Citations.] The Orientation Guide supersedes 'any prior handbooks or policy manuals' issued by Volt and may be 'updated and/or changed by Volt at any time.' [Citation.] The Orientation Guide is addressed to all Volt employees who work for Volt nationwide. [Citation.] The Orientation Guide does not discuss arbitration. For the purposes of this motion, [Joyce] has proven by a preponderance of the evidence that the [Employee Handbook], was superseded by the Orientation Guide, which does not require arbitration.

11 "For all these reasons, [appellants] have not established that [Joyce] is bound by a valid arbitration agreement."

G. Appellants' appeal

Appellants timely appeal the trial court's order denying their petition to compel

arbitration. The order is appealable. (Code Civ. Proc., § 1294, subd. (a).)

III.

DISCUSSION

The trial court did not err in determining that Joyce had not manifested his assent to be bound by a valid arbitration agreement

Appellants contend that the trial court erred in determining that they failed to

establish that Joyce had manifested his assent to be bound by a valid arbitration

agreement. We first outline the general principles of law governing the enforceability of

an arbitration provision, and then address each of the three arguments that appellants

advance in support of their claim that the trial court erred in denying their petition to

compel arbitration.

A. General principles of law governing the enforceability of an arbitration provision

Section 1281.2 provides in relevant part, "On petition of a party to an arbitration

agreement alleging the existence of a written agreement to arbitrate a controversy and

that a party thereto refuses to arbitrate such 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 . . . ." court outlined the law that a trial court is to apply when presented with a petition to

compel arbitration pursuant to Section 1281.2:

"[T]he court's first task is to determine whether the parties have entered into an agreement to arbitrate their claims. [Citation.] Courts 'apply general California contract law to determine whether the parties formed a valid agreement to arbitrate their dispute.' [Citation.] 'General contract law principles include that "[t]he basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contract[ ]." ' [Citation.] 'Contract law also requires the parties agree to the same thing in the same sense.' [Citation.] 'The petitioner [seeking arbitration] bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.' " (Ramos, supra, at pp. 685-686.)

Appellants contend that a trial court must apply the strong public policy in favor of

arbitration embodied in the Federal Arbitration Act (9 U.S.C. § 1) (FAA)6 in determining

the threshold question of whether the parties entered into an arbitration agreement.

Appellants are correct that there are California cases that state "where a transaction falls

under the FAA, even the threshold decision of whether there is an agreement to arbitrate

'must be made " 'with a healthy regard for the federal policy favoring arbitration.' " ' "

(Erickson v. Aetna Health Plans of California, Inc. (1999) 71 Cal.App.4th 646, 655; see,

6 Appellants contend that the FAA applies in this case because "Volt is a multinational corporation engaged in interstate commerce, with employees in every U.S. state." 13 e.g., City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407.) More recent cases

have concluded that the "federal policy in favor of arbitration does not come into play,

however, until a court has found the parties entered into a valid contract under state law."

(Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701.)

The United States Supreme Court has now clarified that "the presumption [in

favor of arbitration] does not apply to disputes concerning whether an agreement to

arbitrate has been made." (Applied Energetics, Inc. v. NewOak Capital Markets, LLC (2d

Cir. 2011) 645 F.3d 522, 526 (italics added), citing Granite Rock Co. v. International

Broth. of Teamsters (2010) 561 U.S. 287, 301 (Granite Rock).) In Granite Rock, the

Supreme Court held that the federal policy favoring arbitration applies "only where a

validly formed and enforceable arbitration agreement is ambiguous about whether it

covers the dispute at hand . . . ." (Granite Rock, at pp. 301, italics added, 302 ["we have

never held that this policy [in favor of arbitration] overrides the principle that a court may

submit to arbitration 'only those disputes . . . that the parties have agreed to submit' "].)

B. The trial court did not err in determining that appellants failed to establish that Joyce signed the Employment Agreement

Appellants claim that the trial court erred in determining that they had not

demonstrated that Joyce manifested his assent to an arbitration agreement by signing the

Employment Agreement. Appellants raise three distinct arguments in support of this

claim, which we consider in turn.

14 1. The trial court did not fail to properly apply evidentiary rules for authenticating a writing

Appellants claim that the "trial court failed to apply the proper authentication

standard" (boldface & capitalization omitted) in concluding that they had not established

that Joyce signed the Employment Agreement. This contention raises a question of law

that we review de novo. (See Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th

999, 1009 [review of a trial court's "selection of the applicable law . . . is reviewed de

novo"].)

Appellants note that a writing may be authenticated by any qualified witness and

that a handwriting comparison done by the court is a valid form of authentication.7

Appellants contend that the trial court "failed to apply" these standards pertaining to the

7 Citing Condee v. Longwood (2001) 88 Cal.App.4th 215, 219 (Condee), appellants also assert that a party petitioning to compel arbitration "need only prove an agreement's existence, at which point the burden shifts to [the respondent] to prove the agreement's falsity." We agree with the court in Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846, that, "[p]roperly understood, Condee holds that a petitioner is not required to authenticate an opposing party's signature on an arbitration agreement as a preliminary matter in moving for arbitration or in the event the authenticity of the signature is not challenged." In this case, Joyce clearly challenged the authenticity of his signature in his opposition; Condee therefore does not apply and appellants bore the burden of establishing the existence of a valid agreement to arbitrate. (See Espejo v. Southern California Permanente Medical Group (Apr. 22, 2016, B262717) ___ Cal.App.4th ___ [2016 Cal.App. Lexis 316, p. *22] [discussing Condee and Ruiz and stating that "[o]nce [party opposing petition to compel arbitration] challenged the validity of that signature in his opposition, defendants were then required to establish by a preponderance of the evidence that the signature was authentic"]; see also Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 & fn.8 [stating that in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394 "[O]ur Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of 'the existence or validity of the arbitration agreement,' " and that to "the extent Condee conflicts with Rosenthal, our Supreme Court's decision is controlling"].) 15 law governing the authentication of a writing. This argument is unpersuasive because

there is no evidence in the record demonstrating that the trial court failed to consider such

methods of authentication.8 While appellants argue that the trial court's order did not

discuss evidence that appellants contend demonstrates that the Employment Agreement

was properly authenticated, the trial court did refer to the primary piece of evidence

offered by appellants—the Employment Agreement—stating, "[Appellants] submit an

Employment Agreement dated May 21, 2012 that contains [Joyce's] signature."

However, the trial court also stated that Joyce had "raised significant questions regarding

the document's authenticity." Further, the trial court's order provided a detailed

description of the evidence that it relied on in determining that appellants failed to

establish that Joyce in fact signed the Employment Agreement. (See pt. II.F., ante.) In

any event, the fact that the trial court did not "discuss[ ]" all of the appellants' evidence

clearly does not establish that the trial court applied an incorrect legal standard.

Accordingly, we conclude that the trial court did not "fail[ ] to apply the proper

authentication standard" (boldface & capitalization omitted) in determining the

authenticity of the Employment Agreement.

8 The methods of authentication mentioned in appellants' brief are far from the only manner by which a writing may be authenticated. (See, e.g., Evid. Code § 1414 [writing may be authenticated by an admission]; Evid. Code § 1416 [writing may be authenticated by a witness with personal knowledge of the supposed writer's handwriting]; Evid. Code § 1418 [writing may be authenticated by a handwriting comparison made by an expert witness].) 16 2. Appellants' assertion that undisputed evidence in the record establishes that Joyce signed the Employment Agreement is incorrect

Appellants also contend that "undisputed evidence proves Joyce signed the

Employment Agreement." (Boldface & capitalization omitted.) As noted previously (see

pt. II.D., ante), in his declaration Joyce stated:

"After the instant motion was filed by [appellants], I reviewed 'Defendant's Exhibit 1 - Employment Agreement.' I had never seen Defendant's Exhibit 1 - Employment Agreement until after I filed the instant lawsuit." (Italics added.)

While appellants interpret Joyce's declaration as stating that Joyce denied

"recalling 'seeing' the fully-executed version of the Employment Agreement" (italics

added), that is not what Joyce's declaration says. Joyce's declaration states that he had

never seen the Employment Agreement prior to his filing of this lawsuit. Further, in its

order denying appellants' petition to compel, the trial court stated,"[Joyce] denies ever

seeing the Employment Agreement until after he filed this lawsuit." As the trier of fact,

the trial court could reasonably find that Joyce's declaration constituted evidence

disputing that he had signed the Employment Agreement. Thus, while appellants contend

that "Joyce's carefully worded declaration does not actually dispute that the signature on

the Employment Agreement was his," the trial court was not required to accept

appellants' interpretation of any ambiguity in Joyce's declaration. In addition, as

discussed below, Joyce presented evidence, which the trial court credited, that supported

a finding that Joyce had not signed the Employment Agreement. Thus, we reject

appellants' contention that the "undisputed evidence" (boldface & capitalization omitted)

established that Joyce signed the Employment Agreement.

17 3. There is substantial evidence to support the trial court's finding that appellants failed to establish that Joyce manifested his assent to be bound by a valid arbitration agreement by signing the Employment Agreement

Appellants contend that the record lacks substantial evidence to support the trial

court's finding that they did not establish that Joyce had manifested his assent to be bound

by a valid arbitration agreement by signing the Employment Agreement.

Substantial evidence is evidence that a reasonable person "might accept as

adequate to support a conclusion," (Estate of Teed (1952) 112 Cal.App.2d 638, 644), or

evidence "that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry

(1996) 44 Cal.App.4th 634, 651.) If there is substantial evidence that supports a disputed

finding, a reviewing court must uphold the finding "no matter how slight it may appear in

comparison with the contradictory evidence . . . ." (Howard v. Owens Corning (1999) 72

Cal.App.4th 621, 631; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 479

(Shamblin) ["Even though contrary findings could have been made, an appellate court

should defer to the factual determinations made by the trial court when the evidence is in

conflict. This is true whether the trial court's ruling is based on oral testimony or

declarations"].)

As discussed above, Joyce submitted a declaration stating that he had never seen

the Employment Agreement until after he filed this action. From such declaration the

trial court could plainly infer that Joyce had not signed the Employment Agreement.

(See Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 630 [in

conducting substantial evidence review on review from order denying motion to compel

arbitration, reviewing court must "presume the [trial] court . . . drew every permissible

18 inference necessary to support its judgment"].) Thus, Joyce's declaration, by itself,

constitutes substantial evidence to support the trial court's finding that appellants failed to

establish that Joyce manifested his assent to be bound by a valid arbitration agreement by

signing the Employment Agreement. (See In re Marriage of Mix (1975) 14 Cal.3d 604,

614 [testimony of a single witness may suffice to constitute substantial evidence].)

Further, the trial court referred to six other facts that it found "raised significant

questions regarding the [Employment Agreement's] authenticity," including that the

Employment Agreement had not been timely provided to Joyce or his counsel in response

to requests for his personnel file. (See pt II.F., ante.) We reject appellants' assertion in

their brief that "the evidence that Joyce did sign the Employment Agreement is

overwhelming." While appellants contend that the signature on the Employment

Agreement is "substantially similar" to a known signature of Joyce's, the trial court was

not required to find that Joyce had signed the Employment Agreement based on such

comparison. In addition, appellants did not provide a declaration from Wood (the person

who purportedly signed the Employment Agreement on Volt's behalf), did not provide a

declaration from any employee who either witnessed Joyce sign the Employment

Agreement or received the signed Employment Agreement from him, and did not provide

a declaration from a handwriting expert attesting that the signature on the Employment

Agreement was Joyce's. While appellants were not required to provide such evidence in

order to prevail on their petition to compel, the absence of such evidence, when

considered in connection with the evidence offered by Joyce in opposition to the petition

19 to compel, demonstrates that the evidence before the trial court that Joyce had signed the

Employment Agreement was far from overwhelming.

Accordingly, although a "contrary finding[ ] could have been made" (Shamblin,

supra, 44 Cal.3d at p. 479), we conclude that there is substantial evidence to support the

trial court's finding that appellants failed to establish that Joyce signed the Employment

Agreement.

C. The trial court did not err in concluding that the Orientation Guide superseded the arbitration provision in the Employee Handbook

Appellants contend that the trial court erred in concluding that the Orientation

Guide "[n]ullified" the arbitration provision in the Employee Handbook. Specifically,

appellants claim that that the trial court erred in interpreting a provision of the Orientation

Guide as providing that the Orientation Guide superseded the arbitration provision in the

Employee Handbook. We apply the de novo standard of review to this claim because it

presents a question of contractual9 interpretation that does not turn on the credibility of

extrinsic evidence. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107

Cal.App.4th 516, 520 [the " 'interpretation of a contract is subject to de novo review

where the interpretation does not turn on the credibility of extrinsic evidence' "].)

9 In their brief, appellants discuss law governing when "[a] statement that a present contract version supersedes all previous or alternate versions . . . ." (Italics added.) We assume for purposes of this decision that appellants are correct that both the Orientation Guide and the Employee Handbook are contracts. 20 1. Factual and procedural background

As noted in part II.D., ante, Joyce acknowledged that, on May 21, 2012, he signed

an acknowledgement form attesting to his receipt of the Employee Handbook. The

acknowledgement form stated in relevant part, "Except as otherwise stated, I agree to

arbitrate any and all disputes related to my employment or assignment(s) with Volt, as

discussed in this [Employee Handbook]."

Joyce presented undisputed evidence that, on June 4, 2012, Volt and Solar issued

the Orientation Guide to him and that he signed a form acknowledging receipt of the

Orientation Guide that same day. The acknowledgement form from the Orientation

Guide states in relevant part, "I understand that this [Orientation Guide] supersedes any

prior handbooks or policy manuals issued by [Volt] . . . ." (Italics omitted.)

2. Governing law

a. General rules of contract interpretation

"[T]he ordinary rules of contract interpretation" are well established. (Santisas v.

Goodin (1998) 17 Cal.4th 599, 608 (Santisas).) The Santisas court described these rules

as follows:

" 'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.' " (Ibid.)

21 b. Case law considering whether an arbitration agreement has been superseded by a subsequent agreement

In Jenks v. DLA Piper Rudnick Gray Cary U.S. LLP (2015) 243 Cal.App.4th 1,

15-16 (Jenks), the court considered whether an agreement between an employee and his

prior employer containing an arbitration provision had been superseded by a subsequent

agreement. In Jenks, an agreement related to the termination of the employee's

employment (Termination Agreement) provided in relevant part, " 'This Agreement

constitutes the entire agreement between the parties with respect to the subject matter

hereof and supersedes all prior negotiations and agreements, whether written or

oral . . . .' " (Id. at p. 15.) The Jenks court concluded that the Termination Agreement did

not supersede an arbitration agreement contained in a prior agreement (Offer Letter). In

reaching this conclusion, the Jenks court reasoned:

"We conclude this clause does not apply to the forum for resolution of disputes, as the Offer Letter does, and therefore does not cancel the Offer Letter's arbitration feature.

"As [employer] observes, the integration clause is explicitly limited to 'the subject matter hereof,' namely, the terms of plaintiff's resignation. The Termination Agreement does not mention arbitration at all, and contains no provisions regarding dispute resolution. Consequently, the identified forum for dispute resolution remains arbitration based on the original Offer Letter." (Id. at pp. 15-16.) (Italics omitted.)

The Jenks court reviewed several cases in which courts had considered similar

issues, including Grey v. American Management Services (2012) 204 Cal.App.4th 803

(Grey) and Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625 (Cione).

The Jenks court concluded that the breadth of the subsequent agreement's integration

22 provision was central in determining whether the arbitration provision in an earlier

agreement had been superseded:

"Grey is distinguishable from the present case, and from Cione, in that the relevant contract at issue in Grey did not contain the limiting 'with respect to the subject matter of' language found in both the Cione . . . contract and the Termination Agreement here. (Compare Cione, supra, 58 Cal.App.4th at p. 631 [' "This Agreement contains the entire understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to in this Agreement" ' (italics added)] with Grey, supra, 204 Cal.App.4th at p. 807 [' "This Agreement is the entire agreement between the parties in connection with Employee's employment with [employer], and supersedes all prior and contemporaneous discussions and understandings" ' (italics added)].)" (Jenks, supra, 243 Cal.App.4th at p. 19.)

3. Application

The Orientation Guide states in relevant part, "I understand that this [Orientation

Guide] supersedes any prior handbooks or policy manuals issued by [Volt] . . . ." (Italics

omitted.) The " 'clear and explicit' " meaning of this provision, interpreted in its

" 'ordinary and popular sense' " (Santisas, supra, 17 Cal.4th at p. 608), is that, as the trial

court concluded, the Orientation Guide supersedes all of the provisions of the Employee

Handbook, including the arbitration provision contained therein.

Appellants do not argue to the contrary. Instead, they argue, "as in Cione, the

[Employee] Handbook and the . . . Orientation Guide are not inconsistent on arbitration

— the [Employee] Handbook requires arbitration and the Orientation Guide is silent on a

23 forum for disputes."10 This argument fails for two related reasons. Cione is

distinguishable because, as noted by the Jenks court, the integration clause at issue in that

case stated that the later agreement constituted " ' "the entire understanding of the parties

hereto with respect to the subject matter contained herein." ' " (Jenks, supra, 243

Cal.App.4th at p. 19, quoting Cione, supra, 58 Cal.App.4th at p. 631.) There is no such

limiting language in the provision at issue in the Orientation Guide. In a related vein, the

arbitration provision at issue in Cione could be given effect because to do so would not

be inconsistent with the integration clause. (See Cione, at p. 639 [enforcing arbitration

agreement in registration application form where "written employment agreement was

reasonably susceptible to the meaning that it did not supersede the [registration

application form]"].) In contrast, in this case, giving effect to the arbitration agreement in

the Employee Handbook would be wholly inconsistent with the broad provision in the

Orientation Guide that states that the guide "supersedes any prior handbooks . . . issued

by [Volt] . . . ." (Italics omitted.)

Appellants also argue that it would be "illogical" to "read the . . .Orientation Guide

10 Although not mentioned by the parties, the Orientation Guide is not entirely silent with respect to a forum for disputes. In a section on sexual harassment, the Orientation Guide contains the following statement, "It is the right of any employee to make a complaint through any complaint procedure with Volt and its subsidiaries and divisions . . . . Any employee may also file a complaint under Title VII of the Civil Rights Act of 1964, or any applicable law in the state in which such harassment takes place." 24 as superseding all policies in the [Employee] Handbook." In support of this contention,

appellants maintain that the Employee Handbook includes several polices covering topics

that are not covered in the Orientation Guide. However, we agree with Joyce that we

may not "ignore the parties' express language" in the Orientation Guide so as to interpret

the Orientation Guide as being limited to, as the appellants argue, the explanation of

"specific rules and expectations unique to the assignment at Solar." Further, a review of

the Orientation Guide demonstrates that it in fact touches on many of the topics that

appellants contend are covered only by the Employee Handbook. For example,

appellants note that the Employee Handbook contains information on "various

employment benefits," "[p]rocedures and policies for when the employee is on

assignment, including communication with Volt," and "[e]mployee rights to privacy,

safety, security, and equal employment opportunity." The Orientation Guide has a

section on "benefits," contains information on "the correct point of contact for any issues

or concerns you may have while on assignment," and has provisions pertaining to e-mail

privacy, "security policies," (formatting omitted) and policies related to sexual

harassment.

Accordingly, we conclude that the trial court did not err in determining that the

Orientation Guide superseded the arbitration provision in the Employee Handbook.

25 D. Joyce did not manifest his implied assent to an arbitration agreement by continuing his employment with Volt after learning of the existence of an arbitration agreement

Appellants claim that the trial court erred in failing to find that Joyce implicitly

manifested his assent to be bound by an arbitration agreement.11 We assume for

purposes of this decision that appellants are correct that "[b]ecause the trial court made

no factual findings related to Joyce's continued employment (and because there is no

dispute of fact with regard thereto), this point of law is reviewed . . . de novo."

1. Governing law

In Craig, supra, 84 Cal.App.4th 416, an employer sent a memorandum to all

employees that contained the following language:

"The enclosed brochure explains the procedures as well as how the Dispute Resolution Program works as a whole. Please take the time to read the material. IT APPLIES TO YOU. It will govern all future legal disputes between you and the Company that are related in any way to your employment." (Id. at p. 419.)

The brochure also "explained the Program's four-step progression — from open

access to management, to an informal conference, to mediation, to arbitration," and

described the arbitration process. (Craig, supra, 84 Cal.App.4th at p. 419.) The trial

court in Craig compelled arbitration based on the memorandum. (Id. at pp. 418-419.)

11 In his respondent's brief, Joyce contends that appellants forfeited this issue by raising this argument for the first time in their reply brief in the trial court. We disagree. In their petition to compel, appellants argued, "[b]oth acceptance [of an arbitration agreement] and consideration are shown by an employee's continued employment," and thereafter cited authority relevant to this contention. By raising the contention and citing applicable authority, appellants adequately raised the issue in their petition to compel. 26 The Craig court rejected the employee's claim that there was insufficient evidence

to prove the existence of an agreement to arbitrate. The Craig court noted that a party's

acceptance of an agreement to arbitrate may be "implied-in-fact where, as here, the

employee's continued employment constitutes her acceptance of an agreement proposed

by her employer." (Craig, supra, 84 Cal.App.4th at p. 420.) The Craig court reasoned

that there was sufficient evidence to support the finding that the employee had agreed to

be bound by the Dispute Resolution Program, including its arbitration provision, because

she had had received the memorandum in 1993 and 1994 and had continued to work for

the employer until 1997. (Id. at p. 422.)

In Mitri, supra, 157 Cal.App.4th 1164, the court considered whether the Craig

court's theory of implied-in-fact assent applied where the document containing the

arbitration provision required the employee's signature in order to be effective. The Mitri

court concluded that the Craig court's theory of implied assent could not be reasonably

applied in such a circumstance:

"Unlike the arbitration agreement provision in the Arnel Employee Handbook, the memorandum in [Craig] established in and of itself the employer's dispute resolution program, and did not include an express requirement that its employees sign an arbitration agreement. Therefore, [Craig] is inapposite.

"Defendants also contend the signed arbitration agreement required by the arbitration agreement provision in the Arnel Employee Handbook was impliedly unnecessary to establish an arbitration agreement between Arnel and plaintiffs. However, such an interpretation of the arbitration agreement provision contradicts that same provision's express term requiring a signed agreement. (See Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 . . . ['implied terms should never be read to vary express terms']; Benach v. County of Los Angeles (2007)

27 149 Cal.App.4th 836, 855, fn. 12 . . . [' "[i]t is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract" '].)" (Id. at pp. 1172-1173.)

Similarly, in Gorlach, supra, 209 Cal.App.4th 1497, the court concluded that

Craig does not govern where the document containing the arbitration provision is not

unilaterally imposed, but instead requires an employee's signature in order to become

effective:

"We do not agree that [Craig] governs the present case. In [Craig], the employee memorandum did not ask employees to sign an arbitration agreement; it simply informed them that any employment-related dispute would henceforth be subject to arbitration. The employee handbook in the present case is different: Rather than unilaterally imposing an arbitration requirement, the handbook told employees that, 'As a condition to employment, all Team Members must sign the Mutual Agreement to Arbitrate Claims . . . .' (Italics added.) In other words, the handbook told employees that they must sign the arbitration agreement, implying that it was not effective until (and unless) they did so. Because Gorlach never signed the arbitration agreement, we cannot imply the existence of such an agreement between the parties." (Id. at p. 1509.)

2. Factual and procedural background

In their petition to compel arbitration, appellants suggested that Joyce manifested

his assent to the Employment Agreement Arbitration Provision and the Handbook

Arbitration Provision by continuing his employment after having become aware of each

provision.

In his opposition, Joyce denied ever having seen the Employment Agreement

Arbitration Provision prior to the commencement of this litigation and claimed that the

Handbook Arbitration Provision had been superseded by the Orientation Guide. In his

28 declaration lodged with his opposition, Joyce acknowledged having received, but did not

recall signing, the Employment Application Arbitration Provision. The Employment

Application contains an arbitration provision identical to that contained in the

Employment Agreement. (See pt. II.B., ante.) Near the bottom of the Employment

Application, the document contains a space for the applicant's signature, under a line that

states, "I/We have read and agree to the above employment terms and conditions."

(Boldface & capitalization omitted.)

In its reply, Volt argued that "Joyce admits he received Volt's arbitration policy

when he applied at Volt and that he then accepted and continued his employment with

Volt for two years." Volt contended that Joyce's continued employment with Volt

manifested his intent to be bound by Volt's arbitration policy.

The trial court did not address whether Joyce had assented to an arbitration

provision by continuing his employment with Volt after becoming aware of the existence

of such provision.

3. Application

On appeal, appellants note that the Handbook Arbitration Provision states, "Your

continued employment with Volt is your agreement to the above provision requiring

arbitration of any and all employment/assignment disputes."12 Appellants also note that

12 The arbitration provision in the Employment Application and the Employment Agreement do not contain such a provision. 29 Joyce admitted receiving and signing an Employee Handbook acknowledgement form.

Appellants contend that Joyce manifested his assent to be bound by the Handbook

Arbitration Provision by continuing his employment with Volt after executing such an

acknowledgement.

This argument fails because we concluded in part III.C., ante, that the Employee

Handbook was superseded by the Orientation Guide. Accordingly, even if Joyce did

assent to the arbitration provision in the Employee Handbook, the Employee Handbook

was superseded by the Orientation Guide.

Appellants also contend that Joyce admitted in his declaration that he " 'received' "

the Employment Agreement and that Joyce recalled that the Employment Agreement

contained an arbitration policy. Appellants misstate the record. Joyce stated in his

declaration that he had not seen the Employment Agreement until after the

commencement of this litigation (see pt. II.D., ante), and we have concluded that there is

substantial evidence to support the trial court's finding that Joyce did not manifest his

assent to be bound by the Employment Agreement. (See pt III.B., ante.) Thus,

appellants have not established that Joyce impliedly agreed to the Employment

Agreement Arbitration Provision.

Although not expressly referred to by appellants in their brief, we acknowledge

that Joyce stated in his declaration that he had seen, but did not recall signing, the

30 Employment Application, which contains an arbitration provision. However, as with the

documents at issue in Gorlach and Mitri, the Employment Application expressly requires

a party's signature in order to be effective. (See Gorlach, supra, 209 Cal.App.4th at p.

1509; Mitri, supra, 157 Cal.App.4th at pp. 1172-1173.) We agree with the Gorlach and

Mitri courts that a party's assent to a document may not be implied under Craig where the

document requires a party's signature in order to be effective. (See Gorlach, at p. 1509

[distinguishing Craig and stating "the handbook told employees that they must sign the

arbitration agreement, implying that it was not effective until (and unless) they did so"];

Mitri, at pp. 1172-1173 [same].)13

Accordingly, we conclude that Joyce did not manifest his implied assent to an

arbitration agreement by continuing his employment with Volt after learning of the

existence of an arbitration agreement.

13 Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223 (Pinnacle), upon which appellants relied in the trial court and on appeal, does not provide any additional support for appellants' claim beyond that provided in Craig. The Pinnacle court merely cited to Craig for the generic proposition that "[a] signed agreement [to arbitrate] is not necessary . . . and a party's acceptance may be implied in fact," while outlining the general law governing the enforceability of arbitration agreements. (Id. at p. 236.) For the reasons stated in the text, Craig is distinguishable and Joyce's assent to an arbitration provision may not be implied under the circumstances of this case. 31

IV.

DISPOSITION

The order denying the petition to compel arbitration is affirmed.

AARON, J.

I CONCUR:

PRAGER, J.*

I CONCUR IN THE RESULT:

HUFFMAN, Acting P. J.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 32