Thursday, July 9, 2020
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Court of Appeal:
Paragraph Mandating Arbitration Valid Though Not Initialed
Currey Says Employee’s Signature on Contract Reciting Agreement With All of the Terms Includes Uninitialed Provision for Arbitration of Any Dispute; Subjective Intent in Not Initialing Is Irrelevant
By a MetNews Staff Writer
An arbitration clause in an employment contract, signed by both parties, was enforceable although neither party initialed the particular clause providing for that procedure, the Court of Appeal for this district declared yesterday.
The opinion, by Justice Brian S. Currey of Div. Four, reverses an order by Los Angeles Superior Court Judge Maureen Duffy-Lewis denying employer BaronHR’s motion to compel arbitration. Her ruling was based on a perception that employee Joseph Martinez was telling the truth in declaring that he did not initial the clause because he did not want to arbitrate in the event of a dispute.
Currey posed the question:
“What if neither party to an arbitration agreement places initials next to a jury waiver contained in the agreement, even though the drafter included lines for their initials?”
He answered:
“On the facts of this case, we conclude the lack of initials is of no legal consequence.”
Wording of Provision
The uninitialed paragraph reads (with bold face in the original):
“Employer and Employee each agree that arbitration, as provided for in this Agreement, shall be the exclusive forum for the resolution of any covered dispute between the parties. In agreeing to arbitration, both Employer and Employee explicitly waive their respective rights to trial by jury.”
Currey explained that Martinez acknowledges signing the agreement and said that he “is, therefore, deemed to have assented to all its terms.”
Those terms, he noted, include not only the arbitration clause, itself, but a portion that recites (with emphasis in the original):
“EMPLOYEE’S CERTIFICATION OF UNDERSTANDING OF AGREEMENT EMPLOYEE’S SIGNATURE BELOW CONFIRMS THAT EMPLOYEE HAS READ, UNDERSTANDS, AND AGREES TO BE LEGALLY BOUND BY, ALL OF THE TERMS OF THIS AGREEMENT.
“EMPLOYEE SHALL NOT SIGN UNTIL EMPLOYEE HAS READ AND UNDERSTANDS THE ENTIRE AGREEMENT. AFTER SIGNING THIS AGREEMENT, EMPLOYEE HAS NO RIGHT TO PURSUE CLAIMS AGAINST THE COMPANY IN COURT AND BEFORE A JURY, BUT ONLY THROUGH THE ARBITRATION PROCESS.”
That language, Currey pointed out, appears immediately above Martinez’s signature.
Duffy-Lewis’s Error
The jurist reasoned:
“Martinez attempted to create ambiguity with his previously undisclosed assertions he did not want to arbitrate or waive his jury trial right when he signed the agreement. We defer to the trial court’s finding the declaration was credible. The court, however, should not have considered Martinez’s unexpressed intentions as evidence of the lack of mutual assent. The law is well-settled that unexpressed subjective intentions are irrelevant to the issue of mutuality.”
Two cases cited by Martinez were inapposite, he declared. Each dealt with a statement in an employee handbook alluding to arbitration but, he said, the handbooks did not constitute contracts.
The case is Martinez v. BaronHR, Inc., B296858.
Representing the employer were David L. Martin and Anne M. Turner of Lewis Brisbois Bisgaard & Smith. Former Los Angeles Police Commissioner Raquelle de la Rocha of the Bloom Firm acted for Martinez.
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