Judge: Yolanda Orozco, Case: 22STCV13837, Date: 2022-08-01 Tentative Ruling

Case Number: 22STCV13837    Hearing Date: August 1, 2022    Dept: 31

MOTION TO COMPEL ARBITRATION IS DENIED 

Background 

On April 26, 2022, Plaintiff April J. Gonzalez filed a Complaint against Anthem Inc.; Cheryle Anaya; Patricia Amoroso; and Does 1 to 10. The Complaint alleges 

1.     Violation of the Pregnancy Disability Leave (PDL)

2.     Retaliation under FEHA

3.     Retaliation in Violation of PDL

4.     Disability Discrimination-Failure to Make Reasonable Accommodation in Violation of FEHA

5.     Failure to Engage in the Interactive Process in Violation of FEHA

6.     Pregnancy Discrimination in Violation of FEHA

7.     Disability Discrimination (FEHA)- Wrongful Termination

8.     Retaliation in Violation of CEFRA

9.     Wrongful Termination in Violation of Public Policy

10.  Failure to Prevent and/or Remedy Discrimination and Retaliation

11.  Defamation Per Se/Per QUOD

12.  IIED 

On June 23, 2022, Defendant Anthem, Inc. filed a Motion to Compel Arbitration. Plaintiff filed opposition papers on July 14, 2022. Anthem Inc. filed a Reply on July 25, 2022. 

Legal Standard 

Parties may be compelled to arbitrate a dispute upon the court finding that: (1) there was a valid agreement to arbitrate between the parties; and (2) said agreement covers the controversy or controversies in the parties’ dispute.¿ (CCP § 1281.2; see also Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.)

 

A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court¿(1998) 62 Cal.App.4th 348, 356-57.) 

 

“If a court of competent jurisdiction . . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP § 1281.4.) 

Evidentiary Objections 

Plaintiff objects to certain portions of Stepanie Topping’s Declaration in support of Defendant’s Motion to Compel Arbitration.

 Objection Nos. 1, 2, 3, 4, 6, 7, and 8 are OVERRULED  

Objection Nos:  5 and 9 are SUSTAINED  

Discussion 

Existence of a Valid Agreement 

Defendant Anthem Inc. asserts that a valid arbitration agreement exists between the Parties that covers all of Plaintiff’s disputes against Defendant. However, there is no written arbitration agreement, only an agreement to arbitrate which Anthem asserts exits via incorporation by reference. 

a.     The Offer Letter 

Plaintiff began working for Anthem as a Customer Service Associate on May 12, 2008. (Compl. ¶ 9.) Anthem asserts that the Offer Letter put Plaintiff on notice as to the existence of a binding arbitration policy. (See Gonzalez Decl. Ex. A.) The letter states the following: 

“Enclosed are several forms for you to review and complete prior to your first day of employment. The Form Checklist will help you know what to bring with you on your first day.”

 

[* * *]

 

“This offer is contingent upon receipt of the signed copy of this letter, a satisfactory background investigation, and proof of your employment eligibility in the United States. Finally, as an associate of WellPoint, you will be subject to the Company’s binding arbitration policy, as more fully described on my HR, HR Policies, Arbitration.” 

(Id. [bold in original].) 

Defendant does not dispute Plaintiff’s assertion that she never signed the Offer Letter. (Gonzalez Decl. ¶ 3, Ex. A.)  Nor does Defendant dispute Plaintiff’s assertion there is no signed arbitration agreement or that Plaintiff was never presented with a standalone arbitration agreement. Nevertheless, Defendant asserts Plaintiff was put on notice of Anthem’s arbitration policy and given information on how to access the Policy. Therefore, Defendant argues a valid arbitration agreement exits via incorporation by the Offer Letter. 

An agreement need not expressly provide for arbitration, but may do so in a secondary document which is incorporated by reference.” (Boys Club of San Fernando Valley, Inc. v. Fidelity & Deposit Co. (1992) 6 Cal.App.4th 1266, 1271.) “For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1331 [citation omitted].)  

Anthem asserts that the offer letter successfully incorporated its arbitration policy by clearly referencing Anthem’s binding arbitration policy and directing Plaintiff to where she could find the policy, on Anthem’s HR portal. 

First, it is disputed as to whether in 2008 Plaintiff, despite not signing or acknowledging the offer letter, was put on notice of Anthem’s arbitration policy. Plaintiff’s declaration does not outright state she was unaware of the arbitration policy in 2008 nor does Anthem’s contention that Plaintiff was put on notice of the Policy in 2008 establish the fact of Plaintiff’s notice of the arbitration policy. Plaintiff’s declaration only attests to the following: 

·       “As a part of my employment, I was asked to watch prerecorded videos on the Anthem’s policies; which consisted of approximately 50 pages worth of PowerPoint slides.” (Gonzalez Decl. ¶ 6.) 

·       “I do not recall the slides or videos mentioning Anthem’s arbitration policy. I have no recollection of ever seeing such policies during the course of my employment.” (Id. ¶ 7.) 

·       “Importantly, although we had access to Anthem’s policies online, we were not required to review the policies themselves listed on the portal in order to obtain a certification of completion. I did not review such policies.” (Id. ¶ 8) 

·       “Given that I never signed the offer letter, nor was required to review the actual arbitration policy to obtain a certificate of completion, I never believed that I had entered into a contract to arbitrate any disputes with my employer; thereby waiving my right to a jury trial.” (Id. ¶ 10) 

Anthem asserts that on 12 subsequent occasions, Plaintiff acquiesced to the arbitration agreement by virtue of acknowledging that she read and would abide by Anthem’s human resource (HR) policies, which included the arbitration provision amongst its other policies. 

Stephanie Topping, the Sr. Human Resources Business Partner, attests that for decades Anthem Associates, such as Plaintiff, had to complete annual ethics and compliance refresher trainings through an online module. (Topping Decl. ¶ 10.) To receive a certificate of completion, employees were required to confirm an understanding of the ethics and compliance certifications. (Id.) Topping states that until 2019, as part of the “Standards of Ethical Business Conduct Certification” the certifications stated:

“My acceptance of these statements acknowledges that: . . . I understand that strict adherence to Anthem [or WellPoint] policies and procedures is a condition of employment... [and] I acknowledge that I have access to Human Resources policies via the Anthem [or WellPoint] intranet site and understand that I am responsible for reading and abiding by the policies and procedures listed therein and as amended from time to time.” 

(Id. ¶ 11.) 

No mention of the arbitration agreement or the above language appear in Anthem’s exhibits, only Plaintiff’s certificate of completion is included. (See Topping Decl. Ex. 8.) 

In 2020, the certification stated: 

“Compliance with Anthem policies is a condition of employment. . . I have access to Human Resources policies via the Anthem intranet site and understand I am responsible for reading and abiding by the policies and procedures listed in them and as amended from time to time.”

(Id.

Anthem asserts that through the certificates, Plaintiff acknowledged that the Certificate of Completion also incorporated the arbitration agreement because the arbitration agreement was part of HR’s policy and strict adherence to Anthem’s policy was a condition of employment. (Reply at 1:6-11.) In essence, Anthem argues that by Plaintiff completing her “ethics and compliance refresher training from 2009 to 2020,” Plaintiff was on notice of and acquiesced to the arbitration agreement - despite the arbitration agreement not being explicitly referenced in the certification - because she acknowledged she was familiar with HR policies. (Topping Decl. ¶ 14.) 

b.     Accessibility of the Arbitration Policy 

Plaintiff disputes Defendant’s premise that she was aware of an arbitration agreement because Plaintiff had access to the arbitration policy and thus should be deemed to have been aware of the agreement’s terms. Plaintiff asserts that Anthem cannot prove Plaintiff did in fact access the agreement or that the certifications provided sufficient notice of the agreement. Plaintiff points to Defendant’s screenshot of the arbitration agreement that Plaintiff purportedly had access to, lists the arbitration agreement amongst 17 other policies, and possibly more because the page is cut off and is incomplete. (See Topping Decl. Ex. 1.) Therefore, it is impossible to accurately assess the total number of policies Plaintiff had to review before accessing the arbitration agreement, and no concrete evidence that she accessed the arbitration agreement. 

To access the arbitration policy, Topping explains employees must first access Anthem’s resources policies through an internal online portal. (Topping Decl. ¶ 7.) One way is to click on the predominant header “Human Resources” and then click on the next header “HR Policies.” (Id) No information is given on how much scrolling or what other header needs to be clicked to access the arbitration policy. 

Alternatively, employees can search “human resources policies” or any specific Anthem policy. (Id.) No information is provided as to how many policies Plaintiff must read or scroll through to access the arbitration policy or how accessible the arbitration policy itself is. Topping states that the search bar also has a drop-down menu that includes “arbitration” or “human resources” with a direct link to the resources (Id.) This fails to explain if clicking on “human resources” takes employees to the arbitration provision directly or whether it is a separate link within the human resources page. Topping adds that if employees need assistance locating any Anthem policy they can speak to their supervisor or call two Anthem hotlines. (Id.) Access to Anthem’s HR policies does not establish that Plaintiff had notice of Anthem’s arbitration policy because it disputed how accessible that particular policy was among other numerous HR policies. 

The Court is not persuaded by Anthem’s theory that the arbitration agreement was incorporated by reference in either the Offer Letter or the subsequent Certificates of Completion. The Court finds that Defendant has not met its burden of proving that Plaintiff had notice of the arbitration agreement because Anthem offers no evidence that Plantiff knew of the provision in the Offer Letter referencing the arbitration policy since Plaintiff never acknowledged it. In this manner, this case is readily distinguishable from Ko v. Anthem Companies, Inc. (C.D. Cal., Mar. 26, 2020, No. SACV192436JVSDFMX) 2020 WL 1467336, because Plaintiff never signed the Offer Letter, unlike the plaintiff in Ko. 

Moreover, there is no indication that Plaintiff knew that abiding by the arbitration agreement or any of Anthem’s policies in 2008 was an explicit condition of employment since that was not stated in the Offer Letter. Anthem explicitly said Plaintiff’s offer of employment with Anthem was contingent on receiving a signed copy of the letter, passing the background check, and proof of eligibility to work in the United States. (Gonzales Decl. Ex. A.) Yet the letter was never signed, and the argument can be made that Anthem waived the requirements of the Offer Letter by not enforcing its provisions. 

Moreover, the Offer Letter directed Plaintiff to Anthem’s arbitration policy by stating “as fully described on my HR, HR Policies, Arbitration.” (Gonzales Decl. Ex. A.) However, how accessible the arbitration policy is remains in debate given that the policy appears to be buried among various HR policies. 

In addition, Anthem cannot show how the certifications Plaintiff acknowledged, which do not explicitly reference the arbitration agreement, are sufficient to bind Plaintiff to Anthem’s arbitration policy. Even if the certificates are not required to recite that they incorporate an arbitration agreement, questions remain as to how easily the certifications guide employees to the arbitration agreement. (See Shaw, supra, 58 Cal.App.4th at 54.) Despite Anthem’s reliance on Shaw that the certifications did not need to reference the arbitration agreement rather only Anthem’s HR policies, Shaw still required the “reference be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.” (Id. at 54 [Internal citation omitted].) 

In Chan v.  Drexel Burnham Lambert, Inc. (1986), the court found that there were “ambiguities in the incorporating document” because it did not refer to the incorporated document with particularity and “did not clearly and equivocally” draw the party’s attention to the document incorporating the rule. (178 Cal.App.3d 632, 644 [italics original].) Here, the ambiguity is whether general references to Anthem’s HR policies clearly and equivocally drew Plaintiff’s attention to the arbitration policy. 

Given that the arbitration provision was not referenced in the certifications and was contained in a secondary document/web page, questions remain as to the accessibility of the web page and if it was sufficient to put Plaintiff on notice that she was bound by an arbitration agreement. 

For the reasons stated, the Court finds that Anthem has not met its burden of proving the existence of a valid Arbitration Agreement. 

Conclusion 

Defendant’s Motion to Compel Arbitration is DENIED. 

Defendant to give notice. 

 

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