Judge: Yolanda Orozco, Case: 22STCV13837, Date: 2022-09-29 Tentative Ruling
Case Number: 22STCV13837 Hearing Date: September 29, 2022 Dept: 31
RENEWED 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.
On August 01, 2022, this Court denied Defendant’s Motion to Compel Arbitration.
On September 06, 2022, Defendant filed a Renewed Motion to Compel Arbitration and to Stay the Action.
Plaintiff filed opposing papers on September 15, 2022. Defendant filed a reply on September 21, 2022.
Legal Standard – RENEWED MOTION
CCP § 1008(b) states “that a party who has previously ‘made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law,’ provided a showing is made to the court ‘by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.’ ” (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 381, quoting CCP § 1008(b).) “Section 1008, subdivision (a) states the procedure for seeking reconsideration of a previous order. Section 1008, subdivision (b) sets out similar prerequisites for filing a renewed motion for an order that has previously been denied. Although the two subdivisions differ in certain minor details, each sets out the same essential requirements.” (Id. at 381.)
“The statute dictates that such an application must be ‘upon new or different facts, circumstances, or law.’ In addition, case law interpreting section 1008 has specifically held that a moving party must give a satisfactory explanation for the previous failure to present the allegedly new or different evidence or legal authority offered in the second application.” (Kerns, supra, 106 Cal.App.4th at 383.) “[T]he prevailing view is that section 1008 now imposes a jurisdictional constraint. . . . [S]ection 1008 ‘is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.’ ” (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200, quoting Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490.)
Evidentiary Objections
Plaintiff filed Evidentiary Objections to the following:
Declaration of Michelle Dee:
Objection No. 1 is OVERRULED.
Objection No. 2 is SUSTAINED.
Declaration of Stephanie Topping:
Objections to the Declaration of Stephanie Topping are OVERRULED in their entirety.
Declaration of Cheryle Anaya
Objections to the Declaration of Cheryle Anaya are OVERRULED in their entirety.
Declaration of Doug LaFlamme
Objections to the Declaration of Doug LaFlamme are OVERRULED in their entirety.
Discussion
Timeliness of Renewed Motion
Defendant Anthem is correct in asserting that Plaintiff mischaracterized Defendant’s renewed motion as a motion for reconsideration. Unlike a motion for reconsideration, a renewed motion under CCP section 1008(b) does not have a statutory time limit. (See Rains v. Superior Court (1984) 150 Cal.App.3d 933, 944.)
Accordingly, the Court finds that Defendant’s renewed motion is timely and considers the motion on the merits.
Gateway Issues
In deciding on a petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue of whether the claims are covered within the scope of the agreement. (See Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, 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. No jury trial is available for a petition to compel arbitration.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [Citations Omitted].)
For this reason, any gateway issues regarding arbitrability will be left to the arbitrator to decide only upon the finding by this Court that a valid and enforceable arbitration agreement exists and that the delegation clause is enforceable.
Previous Denial of Defendant’s Motion to Compel
In denying Anthem’s previous motion to compel arbitration, this Court found that Anthem had failed to prove that an Arbitration Agreement existed because, among other reasons, it was unclear how easily the arbitration agreement was accessible amongst the various HR policies.
Second, this Court found that Anthem cannot show the certifications Plaintiff acknowledged, which do not explicitly reference the arbitration agreement, are sufficient to bind Plaintiff to Anthem’s arbitration policy when the certifications did not reference the arbitration agreement or draw Plaintiff’s attention to the arbitration agreement. Accordingly, there was ambiguity as to whether the references to Anthem’s HR policy clearly and unequivocally put Plaintiff on notice of an arbitration policy.
Defendant’s new or different facts, circumstances, or law
Anthem brings this renewed motion based on new or different facts or circumstances, specifically:
1) The declaration of Cheryle Anaya, who had not been yet been served when Defendant filed its Motion to Compel. Defendant asserts that Ms. Anaya’s declaration introduces the fact that she directed Plaintiff to Anthem’s attendance Policy, which is located immediately below the Arbitration policy on Anthem’s intranet. Ms. Anaya’s declaration also is used to establish that Plaintiff did not inquire about or object to Anthem’s arbitration policy.
2) The declaration of Doug LaFlamme, introduces new information about the annual ethics and compliance trainings, technical aspects of the training, and pre-certification instructions.
3) The declaration of Michelle Dee’s which introduced evidence about Anthem’s talent acquisition process at the time of Plaintiff’s hire, as well as Plaintiff’s specific application and offer history.
4) The declaration of Stephanie Topping which introduces new facts and evidence clarifying Plaintiff’s ability to locate the arbitration policy within Anthem’s HR Policies.
Anthem asserts that Mr. LaFlamme and Ms. Dee’s declarations were not previously presented because both of their departments’ databases were in the middle of transitioning and Anthem could not identify legacy employees with sufficient knowledge of processes from 2008 and was unable to search archival databases for records. Lastly, Ms. Topping’s declaration is offered in response to the August 01, 2022 minute order regarding the accessibility of Anthem’s arbitration policy.
Thus, the Court is satisfied that Anthem has provided a satisfactory explanation as to why the previously filed motion failed to present the alleged new or different evidence. (See (Kerns, supra, 106 Cal.App.4th at 383.)
In New York Times Co. v. Superior Court (2005), the Appeal Court explained that “section 1008 has relaxed the definition of ‘new or different facts,’ but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court.” Therefore, Anthem has met the burden of showing that Ms. Anaya’s, Mr. LaFlamme’s, and Ms. Dee’s testimony was not easily obtainable at the time Defendant Anthem filed the Motion. As to Ms. Topping’s declaration, the Court can consider the declaration provided they “shed new light on the case.” (See Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 829.)
The Court considers the newly submitted declarations to determine if Defendant Anthem has proven by a preponderance of the evidence, the existence of a valid contract binding Plaintiff to arbitration. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)
Existence of a Valid Contract
“‘In California, ‘general principles of contract law determine whether the parties have entered a binding agreement to arbitrate.’ [Citations.] ‘An essential element of any contract is the consent of the parties or mutual assent.’ [Citations.] Further, the consent of the parties to a contract must be communicated by each party to the other. (Civ.Code, § 1565, subd. 3.) ‘Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.’ [Citaitons.].” (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 787–788.)
Mutual assent is determined by the reasonable meaning of the parties' words and acts. (Id. at 789.) “If a party can show that it did not know it was signing a contract, or that it did not enter into a contract at all, both the contract and its arbitration clause are void for lack of mutual assent.” (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1200, 8 Cal.Rptr.3d 517, 82 P.3d 727.)
Here, the Court examines Defendant’s evidence to ascertain if a valid arbitration agreement existed to which Plaintiff assented.
i. LaFlamme Declaration
First, the Court examines the Declaration of Doug LaFlamme, the Director of Development & Learning for Anthem. The statements in the declaration about Athen’s procedures are admissible under the business records exception to the hearsay rule. (Cal. Evid. Code § 1271.) Mr. LaFlamme need only be familiar with the procedures of how Anthem’s records are made and preserved. (See Jazayeri v. Mao (2009) 174 Cal. App. 4th 301, 322 (2009).)
Mr. LaFlamme establishes that the Ethics and Compliance team ensures that every employee completes their training. (LaFlamme Decl. ¶ 4.)
Once a refresher training course is assigned, employees have approximately 60 days to complete the training. (Id. ¶ 6.) The training is self-paced and completed online, and any progress made is saved. (Id.) Mr. LaFlamme asserts that employees are required to complete several quizzes throughout the training and are required to pass the quiz before progressing to the next module. (Id.)
Absent from Mr. LaFlamme’s declaration is any explanation as to whether employees are expected to carry out other job duties while completing the training or if a specific time is set aside in the workday to complete the training. Moreover, nothing in Mr. LaFlamme’s declaration indicates that Anthem designated specific quizzes or assignments that specifically tested employees’ knowledge of Anthem’s arbitration policy or specifically directed them to the arbitration agreement.
Mr. LaFlamme’s review of Plaintiff’s employment record shows that Plaintiff completed the refresher training from 2009 to 2020, wherein Plaintiff electronically signed certification acknowledgments after each completion. (LaFlamme Decl. ¶ 10.) The Court will examine the excerpts of the script for which it is argued Plaintiff signed acknowledgment. Defendant presented only excerpts of the scripts from 2013 to 2021 because the scripts total over 1,500 pages. (See LaFlamme Decl. ¶ 10 fn. 2.)
Completion of the training resulted in employees receiving a “Certificate of Completion” whose relevant portions provide the following similar language:
“You are required to complete this acknowledgment form before you receive the Certification of Completion for the [Year[ Ethics and Compliance Education course.
[. . .]
My acceptance of these statements acknowledges that:
· I have received WellPoint Ethics & Compliance training and have access to a copy of our Code of Conduct.
· I have read the Code of Conduct and understand its purpose and how it applies to me.
· I agree to comply with the Code of Conduct.
· I understand that strict adherence to WellPoint policies and procedures is a condition of employment and WellPoint may take corrective action, including termination, for violations of such policies and procedures, including but not limited to the following:
o The Code of Conduct
o WellPoint policies and procedures
o Failure to report instances of non-compliance with the Code of Conduct
o Applicable laws and regulations
o Terms and guidelines of government health care contracts
[ . . .]
· I acknowledge that I have access to Human Resources policies via the 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.
· I understand that reporting suspected or observed misconduct or other ethical concerns is a condition of employment. Reports and questions can be directed to my manager or the Ethics and Compliance HelpLine at 877-725-2702.”
(LaFlamme Decl. Ex. A to H.)
The Certification makes no reference to an arbitration agreement. While the Certification specifically lays out a Confidentiality Statement, Privacy Statement, and a Conflict of Interest Certification, it makes no specific reference to an arbitration agreement. The Certification makes it clear that Anthem reserves the right to monitor employees’ internet access, usage, telephone conversations, emails, etc., as well as the fact that employees agree that “all inventions, discoveries, ideas, and improvements of any kind relating to the business of WellPoint (“Inventions and Discoveries”) that result from any work performed by me during the course of my employment with WellPoint are the exclusive property of WellPoint.” (Id.)
Despite the specific references to other important Anthem policies, the Certifications make no specific mention of a binding arbitration policy. Moreover, although “strict adherence to WellPoint policies and procedures is a condition of employment,” that same condition is not expressly stated for Anthem’s Human Resources policies, such that Anthem can prove that Plaintiff knew of Anthem’s arbitration policy and that she understood she would be bound by the policy as a condition of employment.
Moreover, even if Anthem proved that the above language showed that Plaintiff was bound to Anthem’s HR Policies as a condition of employment, there is no evidence that Anthem provided notice to Plaintiff that she would be bound by the HR policies after she was terminated from Anthem. (See Esperanza, supra, Cal.App.5th 791 [“The policy acknowledgment gave Esparza no notice that it created an agreement binding her to any of the handbook provisions after her employment at Shore Hotel terminated.”]; see also Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 805 [“while Ajamian did have the Handbook containing the company's policy of arbitrating disputes, she never signed or agreed to the actual arbitration agreement in the Handbook, and she was never even asked to do so after the Employment Agreement was terminated.].)
In, Romo v. Y-3 Holdings, Inc. (2001) the appellate court distinguished the terms contained in an Employee Handbook. (87 Cal.App.4th 1153) The Appellate Court found that the Employee Handbook contained two separate and severable agreements, the agreement to arbitrate and “an agreement to be bound by the ‘benefits,’ ‘policies,’ ‘rules’ and ‘procedures’ contained within the remaining sections of the Employee Handbook.” (Id. at 1159.) Plaintiff’s acknowledgment in the Certifications does not establish that Plaintiff specifically (1) knew of the arbitration policy, (2) understood the policy, and (3) agreed to be bound by the arbitration agreement spelled out in the policy. Acknowledging that she had access to Anthem’s HR Policies does in no way establish that Plaintiff intended to and did agree to be bound by the arbitration agreement.
ii Declaration of Stephani Topping
Stephani Topping is the Human Resource Business Partner for Defendant Anthem. Ms. Topping maintains that since 2005, Anthem has provided employees access to all of its HR Policies, including the Arbitration Policy through its intranet portal. (Topping Decl. ¶ 7.) Before 2017, the intranet portal was called “MyHR”, but has since been called “Anthem Pulse.” (Id.)
It is unclear if, before 2017, to access “MyHR” employees were required to access it from an intranet with various other links to other intranet sites or whether it was its own separate portal. However, LaFlamme’s declaration helps establish that Plaintiff acknowledged she had access to MyHR and presumably knew how to access it. (See LaFlamme Ex. A-H.)
a. Access to Arbitration Policy via “MyHR”
Ms. Topping asserts that once Plaintiff was on the “MyHR” home screen, Plaintiff was required to click on the menu tree under “HR Policies” to access all of the HR Policies bookmarked. (Topping Ex. 1 screenshot no. 1) Anthem’s arbitration policy was the third policy listed and “no additional scrolling is necessary to locate it.”
The Court notes that the section titled “Arbitration” is not distinguishable from other HR designated categories, such as “Attendance” and “Bereavement.” Anthem fails to explain how employees were supposed to distinguish between HR policies that were merely informational such as for attendance or bereasvement, and those which pertained to substantive employment rights, such as an agreement to arbitrate. (See Esparza, supra, Cal.App.5th at 790 [“the policy acknowledgment stated that the handbook ‘is designed to provide information to employees ... regarding various policies, practices and procedures that apply to them including our Arbitration Agreement.’ As in Mitri, therefore, the policy acknowledgment suggests that it is merely informational.”] citing Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164.)
Ms. Toppings’ Exhibit 13, references all the training and online courses employees were required to complete, but none of the courses are evidence that Plaintiff received or was informed of Anthem’s arbitration policy. (See Topping Ex. 13.)
Accordingly, the Court does not find that the arbitration policy on the “MyHR” intranet was noticeable and distinguishable as a binding agreement to arbitrate sufficient to put Plaintiff on notice as to the existence of the agreement.
b. Access to Arbitration Policy via “MyHR”
After 2017, on the “Anthem Pulse” home page, the Arbitration policy could be accessed by clicking on the “Human Resources” page and then clicking on the header “HR Policies.” (Topping Decl. ¶ 9.) Ms. Topping asserts that after clicking on “HR Policies” the arbitration policy is the first category listed. However, on the screenshots provided, the first policy is the “My Attendance & Work Time” category, which presumably lists other policies about said category only if an employee clicks on that category to expand it. (Id. Ex. 1, screenshot no. 2.) Per the second screenshot, the second category listed is “My Job” and if that category is selected/expanded, the first category listed is “Arbitration.” (Id.)
The Court cannot find that Anthem provided a conspicuous placement for its arbitration policy or informed employees about the existence of the policy in a manner that made them sufficiently aware of a binding arbitration policy for all employment disputes. The Court is not inclined to find that an arbitration policy hidden within HR Policies is binding, especially when it appears that employees had to navigate two to three clicks to access the arbitration policy with no clear direction that said policy constituted a binding arbitration contract.
“To support a conclusion that an employee has relinquished his or her right to assert an employment-related claim in court, there must be more than a boilerplate arbitration clause buried in a lengthy employee handbook given to new employees. At a minimum, there should be a specific reference to the duty to arbitrate employment-related disputes in the acknowledgment of receipt form signed by the employee at the commencement of employment.” (Citing Sparks v. Vista Del Mar Child and Family Services (2012) 207 Cal.App.4th 1511, 1522, abrogated on other grounds by Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373.)
After accessing, the link titled arbitration, employees were directed to the heading titled “Arbitration” which contains Anthem’s arbitration agreement. (Topping Ex. 1, screenshot no. 2) Employees have to select “Read More” to access the entirety of the agreement. However, there is nothing in the heading to indicate that “Arbitration” refers to a legally binding contract. The contract does not explicitly state that consent to the arbitration agreement is a condition of employment but it is implied by Anthem’s policies and the fact that the agreement states “This policy applies to all associates working in California.” (Topping Ex. 12.)
Nevertheless, the Court finds that Anthem’s arbitration policy post-2017 was not easily accessible or noticeable to the employees on the “Anthem Pulse” intranet.
c. Access or Reference to the HR Policy via the Standards and Business Conduct of Conduct
Ms. Topping asserts that Anthem’s Ethical Business Conduct or “Code of Conduct” also provided Plaintiff with instructions on how to access the HR policies on Defendant’s intranet. Absent from the Code of Conduct are references or instructions on how to access Anthem’s arbitration policy. (See Topping Ex. 2-8.) From Mr. LaFlamme’s declaration, the Court can infer that Plaintiff agreed to abide by the Code of Conduct.
A review of the Code of Conduct provides the following information:
· “We are responsible for knowing, understanding, and complying with our policies and applicable laws. By committing to these responsibilities, we will continue to conduct our business with integrity and maintain the trust and high level of service expected from us.
To locate key company-wide policies go to Pulse and enter key words to search for the policy you need or see the list of “Our Policies” under Tools & Resources. For Human Resources policies you can also go directly to the Human Resources Pulse site to view the Human Resources policies. For procedures related to your business unit’s activities, please contact your manager.”
· “We are responsible for knowing, understanding and complying with our policies and applicable laws. By committing to these responsibilities, we will continue to conduct our business with integrity and maintain the trust and high level of service expected from us.
To locate key company-wide policies, go to Pulse and enter keywords to search for the policy you need or see the list of our policies under Tools & Resources.:
Nothing in the Code of Conduct reveals that Anthem provided Plaintiff with notice that a binding arbitration agreement existed or that Plaintiff had sufficient knowledge to know the policy existed and could look for it by typing the search term and looking up the policy. Moreover, an acknowledgment that Plaintiff read the Code of Conduct is insufficient to show that Plaintiff knew of Anthem’s arbitration policy and that she agreed to be legally bound to the policy. The “knowing, understanding, and complying with [Anthem’s] policies and applicable laws” is not the same as understanding that Plaintiff would be legally bound to an agreement to arbitrate her claims against Anthem and forgo her right to a trial by jury for all employment disputes.
d. Corrective Actions
In May 2011 and October 2013, Plaintiff received and hand-signed two corrective action forms. (Topping Decl. ¶ 17, Ex. 15-19.) As part of the corrective action, Plaintiff acknowledged that “I acknowledge that I have received a copy of (and/or have electronic access via the company intranet) the following documents: the Anthem Standards of Ethical Business Conduct manual, HR Policies and any Standard Operating Procedures of my unit. I agree to abide by the policies contained within these documents.” (Id.) Again, the fact that Plaintiff agreed to abide by Anthem’s HR Policies and agreed that she had access to the HR Policies, does not establish that Plaintiff knew of the arbitration agreement and agreed to be bound by it. Moreover, the language quoted does make it clear that a condition of Plaintiff’s employment was an agreement to adhere to the HR Policies.
After 2017, Anthem’s arbitration policy could be found on “Anthem Pulse.” This means that the Corrective Actions on May 2018, June 2017, and August 2017 required two to three clicks for the employee to access the arbitration policy. Therefore, it is unclear how far removed the “Attendance Policy” Plaintiff was required to review was from the arbitration policy. (See Topping Ex. 1 screenshot no. 2.)
This is significant because before 2017 on “MyHR,” the attendance policy Plaintiff was required to review was right above the arbitration policy and was presumably easily accessible to Plaintiff. (Topping Decl. Ex. 1, screen shoot 1.) Here, Defendant fails to show how to access a link to the third category titled “Arbitration” on MyHR, which would establish that Plaintiff assented to arbitrating her claims or that she understood agreeing to arbitration was a condition of employment.
Ms. Topping points out that Plaintiff emailed acknowledged the May and June 2017 corrective actions and electronically signed the August 2017 warning via Docusign. Apparently, Anthem never sought to obtain Plaintiff’s electronic signature or other acknowledgment regarding the arbitration policy. (Topping Ex. 15 -19.)
Ms. Topping also represents that there are four versions of the arbitration policy Anthem adopted, on September 17, 2007, February 14, 2013, January 22, 2014, and September 28, 2016. (Topping Decl. ¶ 12, Ex. 9 to 12) Yet, Anthem does not explain why it did not bring the arbitration policy to Plaintiff’s attention like it did the corrective action or other employment-related policies, or why it did not require Plaintiff to separately acknowledge the arbitration agreement like it did the corrective actions.
Courts have found that terms that “are hidden in a prolix form drafted by the party seeking to enforce the disputed terms” may be procedurally unconscionable. (See A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 475.) Here, it appears that an entire contract was hidden within Anthem’s various HR policies in an intranet or website that contained numerous other policies and that Anthem made no effort to bring the arbitration policy to the attention of its employees, including Plaintiff.
iii. Declaration of Cheryle Anaya
Cheryle Anaya is the Customer Service Manager II, for Anthem who supervised Plaintiff between April 15, 2019, and November 7, 2021, and from 2012 to 2015. (Anaya Decl. ¶ 2.) Ms. Anaya asserts that she instructed the employees she supervised, such as Plaintiff, to direct any questions about Anthem’s systems, policies, or practices to her. (Id. ¶ 4.) Ms. Anaya also directed employees to the appropriate policy or procedure within the Anthem Pulse intranet or referred them to the HR Business Partner of the Associate Relations Team. (Id.)
Ms. Anaya asserts that she is “unable to locate any record of [Plaintiff] ever making any inquiries about or objecting to Anthem’s Arbitration Policy.” (Anaya Decl. ¶ 4.) The fact that Plaintiff never inquired about Anthem’s policy does not establish that she had knowledge of the policy’s existence, that she knew that agreeing to the policy was a condition of employment, or that Plaintiff agreed to be bound by the arbitration policy.
iv. Declaration of Michelle Dee
Ms. Dee’s declaration establishes that the initial Offer Letter to Plaintiff stated that Plaintiff will be subject to the Company’s binding arbitration policy, as more fully described on MyHR, HR Policies, Arbitration. (Dee Decl. Ex. 2.)
This Court previously noted that the Offer Letter explicitly stated that “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.” (Gonzalez Decl. Ex. A.) Moreover, nothing in the letter informs Plaintiff that an agreement in the arbitration policy was a condition of employment.
Anthem has not established that it provided Plaintiff with a stand-alone copy of the arbitration agreement despite the letter stating that “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.” (Gonzalez Decl. Ex. A.)
Lastly, there is no indication that after Anthem acquired Wellpoint, it informed Plaintiff that she would continue to be bound by the arbitration policy. (See Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 791.)
Relevant Case Law
Having reviewed Anthem’s newly submitted evidence, the Court cannot find that Anthem proved by a preponderance of the evidence that Plaintiff agreed to be bound by any arbitration agreement.
In Diaz v. Sohnen Enters (2019) 34 Cal. App. 5th 126, 130 the arbitration agreement in question explicitly stated that binding arbitration was a condition of the plaintiff’s employment. In Harris, unlike this instant action, there was no dispute that the plaintiff acknowledged receiving both the arbitration agreement and the employee handbook. (See Harris, supra, Cal.App.4th at 381.) In Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, there was a reasonable presumption that because the brochure containing the arbitration agreement was mailed to the plaintiff, the plaintiff received the arbitration agreement. In Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, the Appeal court found that even though the plaintiff had the employee handbook containing the company’s policy of arbitrating disputes, the plaintiff never signed or agreed to the actual arbitration agreement in the handbook and the plaintiff was never asked to agree to the policy after her employment agreement was terminated.
And in Serafin v. Balco Properties Ltd., LLC (2015) the court explained why the arbitration policy at issue there was enforceable:
“Balco's mandatory arbitration policy was not buried in a lengthy employee handbook. Instead, the arbitration policy was set out in its own two-page, easy-to-read document, separate from any other document that Serafin was required to execute as part of her employment. At the top of the document is clearly labeled ‘MANDATORY ARBITRATION POLICY’ in capitalized lettering, unmistakably informing Serafin of the document's purpose. . . The arbitration policy goes on to state, ‘All employees will be required to sign an acknowledgment stating that they understand this policy and will comply with it.’”
(235 Cal.App.4th 165, 174–175 [italics original].)
Here, Defendant cannot show that its arbitration policy was easily accessible and conspicuously placed such that it put Plaintiff on notice of its existence.
Defendant relies on on a district court case, Pulido v. Caremore Health Plan, Inc. (C.D. Cal., May 12, 2020, No. CV2002730ABAFMX) 2020 WL 5077353, to support its position that Plaintiff knew of the arbitration policy and agreed to be bound by it.
In Pulido, the district court upheld Anthem’s arbitration policy via the doctrine of incorporation because Anthem’s Ethical and Business Conduct Certification asserted that Plaintiff understood 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.”
(Pulido v. Caremore Health Plan, Inc. (C.D. Cal., May 12, 2020, No. CV2002730ABAFMX) 2020 WL 5077353, at *2)
Moreover, the District Court found that “Anthem's HR policies include Anthem's Arbitration Policy (the ‘Arbitration Policy’), which is the first policy listed under the ‘My Job’ category of Anthem's HR policies.” (Id.)
First, unlike the plaintiff in this instant action, the plaintiff in Pulido did not dispute that an aribitration contract was formed, only that “documents it incorporated by reference existed elsewhere on Defendants' intranet.” (Id. at p. *4) Moreover, it was undisputed that plaintiff knew of the exitance of Anthem’s arbitration policy because the plaintiff objected to arbitration on the basis that “she was ‘forced to sign a problematically one-sided, confusing agreement.” (Id. at p. *3)
Here, Plaintiff argues that she has no recollection of ever seeing Anthem’s arbitration policy or that the policy was specifically pointed out to her. Plaintiff asserts that she was unaware of the existence of an arbitration agreement. (Gonzalez Decl. ¶ 7.) Moreover, Plaintiff asserts that after she was hired, she was never informed that “assent to the arbitration agreement was a condition of employment.” (Id.)
Second, the Court disagrees with the district court in Pulido, that the arbitration agreement was easily accessible because it was the “first policy listed under the ‘My Job’ category” on the “Anthem Pulse” intranet because, per the screenshots provided by Ms. Topping, the “My Job” category was the second category on the HR policy webpage. (Topping Decl. ¶ 9, Ex. 1 screenshot no. 2.) Moreover, prior to accessing the HR policy webpage, employees had to log on to Anthem Pulse, then the employee had to click on the “prominent header ‘Human Resources” and then click on the header ‘HR policies’” to access the categories, the second which had the Arbitration Policy (Id.)
The Court find that it was not “clear and unequivocal [] that the plaintiff [could] easily locate the incorporated document.” (Wolschlager v. Fidelity National Title Ins. Co. (2003) 111 Cal.App.4th 784, 791.) The Court is not convinced that the broad language of Anthem’s Ethical and Business Conduct Certification is sufficient to bind Plaintiff to Anthem’s arbitration clause when (1) Anthem does not explicitly reference the policy, (2) does not make the policy accessible or draw notice to the policy, and (3) does not distinguish the arbitration policy from other informational policies with no legally binding effect. This Court notes that Anthem was diligent in informing Plaintiff about other policies including “at-will employment” and ownership of any “derivative works” created by Plaintiff during the course of her employment. The same cannot be said about Anthem’s efforts to inform or secure Plaintiff’s acknowledgment of its agreement to arbitrate.
For all the stated reasons, Anthem’s Renewed Motion to Arbitrate is DENIED.
The Court does not need to reach the issue of the Delegation Clause.
Conclusion
Defendant’s Renewed Motion to Compel Arbitration is DENIED.
The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking will be observed at the Courthouse and in the courtrooms.