Judge: Lindsey E. Martinez, Case: 2021-01237008, Date: 2022-08-01 Tentative Ruling



Defendants Optum Services, Inc., Optum Rx, Inc. and United Healthcare Services, Inc. move to compel Plaintiff Tawana Jean Cooper to arbitrate her claims and to dismiss the instant action. For the following reasons, Defendants’ motion is DENIED without prejudice.


The Arbitration Policy dated November 20, 2019 (the “Arbitration Policy”) states, in pertinent part:


“This Policy creates a contract between UnitedHealth Group and employee requiring both parties to resolve employment-related disputes (except the excluded disputes listed below) that are based on a legal claim through final and binding arbitration. Arbitration is the exclusive forum for the resolution of such disputes, and the parties mutually waive their right to a trial before a judge or jury in federal or state court in favor of arbitration under the Policy.


UnitedHealth Group and employee mutually consent to the resolution by arbitration of all claims and controversies, past, present, or future, that employee may have against UnitedHealth Group or UnitedHealth Group may have against employee, which arise out of or relate to employee’s employment, application for employment, and/or termination of employment.”


(Weedman Amended Decl. ¶ 9, Ex. A.)


Although the November 20, 2019 Arbitration Policy states that it will be governed by the Federal Arbitration Act, Plaintiff argues that this provision does not control because she never signed the November 20, 2019 Arbitration Policy. The parties agree that the Code of Civil Procedure section 1281.2 applies to this action. (Opposition, 9:24-28; Reply, 1:16-17.)


A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass’n) (2010) 181 Cal.App.4th 633, 640-641.)  


Code of Civil Procedure section 1281.2 requires the court to order arbitration pursuant to a written agreement to arbitrate unless the court determines (1) the right to compel arbitration has been waived by the party seeking to compel arbitration, (2) grounds exist for the revocation of the agreement to arbitration or (3) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2, subds. (a)-(c).) 


“ ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b)) —that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ ” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413; Little v. Pullman (2013) 219 Cal.App.4th 558, 565-566.)


In resolving a petition to compel arbitration, “the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla, 15 Cal.4th at 972; Little, 219 Cal.App.4th at 565.)


Defendants have submitted evidence that Susan Weedman, United Healthcare Services, Inc.’s (“UHG”) VP, Human Capital Services, has knowledge about UHG’s recruitment and onboarding process and has personal knowledge of the length and terms of Plaintiff’s employment of with Defendants. (Weedman Amended Decl. ¶¶  2-3.) Weedman declares that UHG offered Plaintiff a position as a Pharmacy Customer Service Representative on November 19, 2019. (Weedman Amended Decl. ¶ 6.) Included in UHG’s offer letter, UHG advised Plaintiff that the offered position included an Arbitration Policy which “is a binding contract between you and UnitedHealth Group to resolve through arbitration all covered employment-related disputes that are based on a legal claim, and mutually waive the right to a trial before a judge or jury in court in favor of final and binding arbitration. (Weedman Amended Decl. ¶ 7.) To ensure that there was no ambiguity as to the terms of this Policy, the Arbitration Policy was accessible electronically via a link in the electronically delivered Offer Letter, permitting Plaintiff to fully consider before accepting her employment. (Weedman Amended Decl. ¶ 8.) Weedman declares that on November 20, 2019, at approximately 03:52 UTC, during the onboarding process through NEC, Plaintiff electronically signed the UHG Arbitration Policy, which required arbitration of all claims arising from her employment. (Weedman Amended Decl. ¶ 9. Ex. A.)


Weedman further declares that throughout her employment, Plaintiff was informed and acknowledged she continued to be bound by the Arbitration Policy. For example, at the top of the “Internal Dispute Resolution Appeal Form,” which Plaintiff signed and executed on February 10, 2021, she was instructed to first “read the…Arbitration Policy” before submitting her appeal. (Weedman Amended Decl. ¶ 11.)


Plaintiff declares that she did not receive an offer letter from Defendants on November 19, 2019, or at any other time, and did not utilize UHG’s new employee onboarding process through NEC or any other means on November 20, 2019 at approximately 03:52 UTC. (Cooper Amended Decl. ¶¶ 6-10, 13-28.) Plaintiff further declares that she did not electronically sign the Arbitration Policy that is attached as Exhibit A to the Declaration of Susan Weedman or execute the Internal Dispute Resolution Appeal Form on February 10, 2021 that is attached as Exhibit B to Weedman’s declaration. (Cooper Amended Decl. ¶¶ 11-12, 29.)


Defendants have not met their burden to prove by a preponderance of the evidence that the November 20, 2019 is a valid written arbitration agreement. Defendants do not address or dispute Plaintiff’s account of the events of November 19, 2019 and November 20, 2019. Although Defendants provided a copy of the November 19, 2019 Offer Letter that included a link to the Arbitration Policy, Defendants have not provided evidence demonstrating that the Offer Letter was sent to and received by Plaintiff. Similarly, unlike the defendants in Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, Defendants have not provided details of the electronic review and signature process for the Arbitration Policy.


Plaintiff declares that she took part in an onboarding process that started on December 2, 2019. (Cooper Amended Decl. ¶¶ 30-31.) Plaintiff further declares that she learned about the Employment Arbitration Policy by stumbling upon it after being given 30 minutes to go through the online employee handbook. Plaintiff attached the Handbook Arbitration Policy as Exhibit I to her declaration. (Cooper Amended Decl. ¶ 32.) Plaintiff declares that she acknowledged, accepted, and agreed to the online employee handbook despite the Handbook Arbitration Policy because it was her understanding that arbitration was used only when the Internal Dispute Resolution (“IDR”) process is unsuccessful. (Cooper Amended Decl. ¶ 33.) Plaintiff declares that on December 17, 2020, she printed out a copy of the Handbook Arbitration Policy that she had signed in December 2019 during the onboarding training and that it was the same policy. (Cooper Amended Decl. ¶ 34.)


The Handbook Arbitration Policy attached as Exhibit I to Plaintiff’s Amended Declaration is different than the November 20, 2019 Arbitration Policy attached as Exhibit A to Weedman’s Amended Declaration. Although Plaintiff admits to acknowledging, accepting, and agreeing to the online employee handbook, the parties did not discuss or provide the language associated with signing the online employee handbook. On the record before the Court, there is no evidence that Plaintiff agreed to abide by the online employee handbook’s arbitration language or a separate arbitration policy.


Plaintiff’s objection No. 1 is OVERRULED.


Plaintiff to give notice.