Judge: Maurice A. Leiter, Case: 22STCV26170, Date: 2023-03-10 Tentative Ruling

Case Number: 22STCV26170    Hearing Date: March 10, 2023    Dept: 54

Superior Court of California

County of Los Angeles


Winston Mar,






Case No.:








Tentative Ruling



Lawrence Perkins, et al.,












Hearing Date: March 10, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendants SierraConstellation Partners, LLC and Lawrence Perkins

Responding Party: Plaintiff Winston Mar






If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.


            The Court considers the moving papers, opposition, and reply.




            On August 12, 2022, Plaintiff Winston Mar filed a complaint against Defendants SierraConstellation Partners, LLC and Lawrence Perkins, seeking a buyout of Plaintiff’s interest in SCP under Corp. Code § 16405.




“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 a 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….”  (CCP § 1281.2.)  The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.   (CCP § 1281.2(a)-(c).)  “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.”  (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)


Defendants move to compel arbitration based on the arbitration agreement in the Employee Handbook. (Decl. Waits, Exh. A.) Defendants assert that all employees are bound by the handbook and arbitration agreement by virtue of continued employment with Defendants. The agreement states, “WHETHER OR NOT I HAVE SIGNED A SEPARATE AGREEMENT TO ARBITRATE, I UNDERSTAND THAT I HAVE AGREED THAT MY EMPLOYMENT WITH THE COMPANY IS SUBJECT TO BINDING ARBITRATION…” (Id. at 68.)


After receiving the 2020 handbook, Plaintiff and Rebecca Waits, the Chief People Officer, had a telephone conversation in which Plaintiff stated he would not sign the handbook or arbitration agreement. (Decl. Waits ¶ 13.) Waits sent a follow-up email stating Plaintiff is bound by the agreement by continuing to work for SCP. Plaintiff responded, “Again, I am not signing this handbook. And will not be bound by it. If you would like, please feel free to terminate me due to that.” (Id., Exh. C.) Plaintiff remained employed at SCP for another 18 months. The parties do not dispute these facts; the Court need not hold an evidentiary hearing.


Defendants argue that the parties have an “implied-in-fact” agreement to arbitrate because Plaintiff did not quit working for Defendants after receiving the handbook. In support of this argument, Defendants cite Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373. The Court of Appeal in Harris found that the plaintiff employee was bound by the arbitration agreement in the employee handbook by acknowledging its receipt and beginning employment.


In opposition, Plaintiff asserts that a mutual agreement to arbitrate does not exist. Plaintiff expressly told Defendants he would not be bound by the employee handbook and invited Defendants to terminate his employment if this was not agreeable to them. Defendants did not terminate his employment.


As stated, Defendants have the burden of establishing the existence of an arbitration agreement. Defendants have not met that burden. Plaintiff clearly stated he did not agree to arbitrate. He said Defendants could fire him for his refusal to be bound by the employee handbook’s arbitration provision. Defendants did not fire him. Defendants cite no authority holding that an employee handbook creates an implied-in-fact contract despite the employee’s express statement he will not be bound by it. Nor have Defendants shown that in the standoff presented here – the employer doesn’t fire an employee who refuses to agree to arbitration, and the employee doesn’t quit - the law deems the employee to have consented.


Defendants’ motion to compel arbitration is DENIED.