Filed 6/11/20 Macias c. Casas International Brokerage CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANARELI MACIAS,

Plaintiff and Respondent,

v.

CASAS INTERNATIONAL BROKERAGE, INC.,

Defendant and Appellant.

D075190

(Super. Ct. No. ECU000553)

APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Reversed and remanded with directions.

Law Offices of Thomas F. Nowland, Thomas F. Nowland, Daniel A. Brodnax, Sean B. Janzen, Sarah K. Simon and Joseph F. Desiderio for Defendant and Appellant.

The Aarons Law Firm, Martin I. Aarons and Shannon H.P. Ward for Plaintiff and Respondent.

I.

INTRODUCTION

Anareli Macias filed a complaint against her former employer, Casas International Brokerage, Inc. (Casas), in which she alleged sexual harassment, battery, and violations of various Labor Code provisions, among other causes of action. Casas filed a petition to compel arbitration based on an April 2018 arbitration agreement (“Arbitration Agreement” or “Agreement”). Macias filed an opposition in which she raised numerous arguments against granting the petition.

After holding an evidentiary hearing, the trial court denied the petition on a ground not raised by the parties. The court noted that Macias had testified at the hearing that some of the alleged harassment had occurred prior to the signing of the Agreement. The court proceeded to conclude that arbitration could not be ordered as to such pre-Agreement conduct. The court further concluded that, because the pre-Agreement conduct was inextricably related to certain post-Agreement conduct forming the basis of Macias’s claims, it would not be appropriate to order the arbitration of any of Macias’s causes of action, given the possibility of inconsistent results in the litigation and the potential arbitration.

On appeal, Casas contends that the trial court erred in concluding that the Arbitration Agreement could not be applied to conduct that occurred prior to Macias’s signing of the Agreement. We agree. As the Court of Appeal in Salgado v. Carrows Restaurants, Inc. (2019) 33 Cal.App.5th 356, 361 (Salgado) explained, “[T]he ‘contention that an agreement to arbitrate a dispute must pre-date the actions giving rise to the dispute is misplaced. Such a suggestion runs contrary to contract principles which govern arbitration agreements.’ ” (Id. at p. 361, quoting Zink v. Merrill Lynch Pierce Fenner & Smith, Inc. (10th Cir. 1993) 13 F.3d 330, 332 [(Zink)]; see Franco v. Greystone Ridge Condominium (2019) 39 Cal.App.5th 221, 230 [applying Salgado] (Franco).) Accordingly, we reverse the trial court’s order denying Casas’s petition to compel arbitration and we remand the matter to that court with directions to further consider the petition and Macias’s opposition.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Macias’s complaint

In August 2018, Macias filed a complaint against Casas containing 13 causes of action, including hostile work environment sexual harassment, quid pro quo sexual harassment, failure to prevent discrimination and harassment, retaliation, sexual battery, common law battery, intentional infliction of emotional distress, failure to provide meal breaks, failure to provide rest periods, waiting time penalties, failure to provide accurate itemized wage statements, failure to produce employee personnel records, and unfair business practices.

In her complaint, Macias alleged that she is a former employee of Casas and that her direct supervisor, Alberto Contreras, had sexually harassed her over “a lengthy period of time.” Macias alleged that Contreras had inappropriately touched her in “private areas,” made “sexually explicit” comments about her, and suggested that he and Macias have an affair, among other conduct.

Macias also alleged that she had been retaliated against when she refused Contreras’s advances and that Casas had failed to take “immediate and appropriate corrective action,” despite having actual knowledge of Contreras’s conduct. Macias further alleged that Contreras’s harassing behavior and Casas’s failure to address that behavior created such intolerable working conditions that she was forced to resign and that Casas’s “final act of retaliation” was her constructive discharge.

With respect to her allegations pertaining to the Labor Code, Macias alleged that Casas had failed to provide her with meal and rest breaks, had failed to provide her with meal and rest break premiums for days on which she was denied the opportunity to take those breaks, and had failed to pay her those premiums upon her constructive discharge. Macias also alleged that Casas had failed to provide her with accurate wage statements and had failed to provide her with her personnel file upon request after her discharge, as required. Finally, Macias alleged that Casas had engaged in unfair business practices by committing these Labor Code violations.

B. Casas’s petition to compel

Casas filed a petition to compel arbitration and to stay this litigation. In an accompanying brief, Casas argued that all of Macias’s causes of action arose out of her employment relationship with Casas and that all of her causes of actions were subject to arbitration pursuant to the Arbitration Agreement. Together with its petition, Casas lodged a declaration from its Chief Financial Officer, John Jolliffe. In his declaration, Jolliffe stated as follows:

“Attached hereto as Exhibit ‘A’ is a true and correct copy of the receipt of employee handbook and policies acknowledgment agreement between . . . Macias and [Casas], which was entered into by . . . Macias at the commencement of her employment with Defendant and re-acknowledged and re-signed by . . . Macias in April 2018. In the clause entitled ‘Mediation and Arbitration Procedure’ as depicted in Exhibit ‘A,’ . . . Macias agreed to arbitrate all disputes related to the employment relationship between her and [Casas].”

Casas attached Exhibit A to the Jollife declaration. “Exhibit A” contains two documents. The first document is a single page and is entitled “Receipt of Employee Handbook.” The document is signed by Macias and dated February 18, 2013. In the document, Macias acknowledges having received Casas’s “most recent” Casas “employee handbook.” There is no reference to arbitration in the document.

The second document is two pages in length and is entitled “Acknowledgement.” That document states in relevant part:

“Any dispute either during employment or following termination from employment must be settled with mediation and/or arbitration.”

Immediately following this sentence, is a signature block and the word “Sign.” Macias’s signature appears on the line.

Below the signature block is the following:

“Mediation and Arbitration Procedure

“As a condition of your employment at CASAS, you agree that any controversy or claim arising out of or relating to your employment relationship with CASAS or the termination of that relationship, must be submitted for non-binding mediation before a third-party neutral and if necessary for final and binding resolution by a private and impartial arbitrator, to be jointly selected by you and CASAS.

“Claims Covered: This agreement to submit to mediation and if necessary arbitration: Covers any dispute concerning the arbitrability of any such controversy or claim; and [i]ncludes, but is not limited to, any claim that could be asserted in court or before an administrative agency or claims for which the employee has an alleged cause of action. Including without limitation claims for breach of any contract or covenant (express or implied); tort claims; claims for discrimination (including, but not limited to, discrimination based on sex, pregnancy, race, national or ethnic origin, age, religion, creed, marital status, sexual orientation, mental or physical disability or medical condition or other characteristics, protected by statute[)]; claims for wrongful discharge; violations of the Family and Medical Leave Act (FMLA); violations of confidentiality or breaches of trade secrets; and/or claims for violation of any federal, state or other governmental law, statute, regulation or ordinance, and whether based on statute or common law.

“All those claims whether made against CASAS, any of its subsidiary or affiliated entities or its individual officers or directors (in an official or personal capacity).

“Claims Not Covered: Claims covered by this Agreement do not include:

“A claim for workers’ compensation benefits;

“A claim for unemployment compensation benefits;

“A claim for disability benefits”

Macias’s signature appears directly next to this provision. Macias’s signature also appears next to several other provisions on the same page of the document. At the bottom of the page, Macias’s signature appears next to the date, April 17, 2018, and above her handwritten printed name.

C. Macias’s opposition

Macias filed an opposition to the petition to compel arbitration in which she argued, “Plaintiff Never Agreed to Arbitrate Employment Disputes.” In support of this contention, Macias raised numerous arguments, including that the Arbitration Agreement lacked mutual assent due to her lack of proficiency with the English language. Macias also argued that the Arbitration Agreement was both procedurally and substantively unconscionable. Macias supported her opposition with her own declaration, her counsel’s declaration, and several other documents.

Casas filed a reply brief in which it responded to Macias’s contentions and reiterated its request that the court order the matter to arbitration and stay the litigation. Casas supported its reply with the declaration of its general manager, Hector Casas (Hector). Casas also lodged several additional documents in support of its reply.

D. The hearing

After Macias filed a surreply brief, the trial court held an evidentiary hearing. At the hearing, Macias was the sole witness on her behalf, testifying through a translator. Hector, Contreras, and Cesar Villa, another Casas employee, testified on behalf of Casas. Much of the testimony pertained to issues not relevant to this appeal, including Macias’s proficiency with the English language and the circumstances surrounding Macias’s signing of the Arbitration Agreement.

As relevant to the issues in this appeal, the settled statement states the following:

“On the Court’s examination ([Macias]):

“. . . The Court inquired as to when certain allegations of sexual harassment in [Macias’s] complaint took place. [Macias] testified that although she could not remember specific dates, the inappropriate touching and comments were in June, 2017. Some of it could also have been prior to April of 2018. She provided estimates as to when the conduct began. [Macias] testified some of the harassment took place before and after her maternity leave. She returned in June 2017 from maternity leave. [Macias] further testified much or the sexual harassment had occurred prior to April, 2018.”

E. The trial court’s order denying the petition to compel

The trial court issued an order denying Casas’s petition to compel. The court reasoned:

“The court concurs with [Macias’s] position that the only actual document that discusses mediation/arbitration is the April 2018 [Agreement] which refers to ‘Mediation and Arbitration Procedure.’ Although the exact dates of the acts and omissions of which [Macias] complains are not stated in the Complaint, the court notes that the evidence indicates that some of it occurred prior to [Macias’s] signature on the said [Agreement], and some of it occurred afterward. Because of this, a question has arisen as to whether the entire matter is arbitrable under the [Agreement], since some of the conduct of which [Macias] complains had already occurred by its effective date.

“Casa[s] v. CarMax Auto Superstores, Inc. (2014) 2[2]4 Cal.App.4th 1235 [(CarMax)] holds, at page 1237, that a subsequent modification involving an arbitration agreement is not applicable retroactively to cover conduct occurring before its effective date, and that subsequent conduct is arbitrable only if it is severable from the prior conduct.

“In this case, [Macias] testified that she suffered harassment which occurred before the effective date of the [Agreement] and retaliation after such effective date. Because of this, the action would proceed as to the pre-[Agreement] conduct. However, the court finds that because the alleged retaliation would have been based upon and inextricably related to the pre-[Agreement] conduct, if arbitration were to proceed pursuant thereto, there is the potential for duplicative proceedings and inconsistent results, such that referral to arbitration would not be appropriate.

“In light of the foregoing, the petition to compel arbitration is denied.”

F. Casas’s appeal

Casas timely appeals from the trial court’s order denying its petition to compel arbitration.

III.

DISCUSSION

The trial court erred in denying the petition to compel arbitration on the ground that the Arbitration Agreement cannot be applied to conduct that occurred prior to Macias’s signing the Agreement

Casas claims that the trial court erred in denying the petition to compel arbitration on the ground that the Arbitration Agreement cannot be applied to conduct that occurred prior to Macias’s signing the Agreement. Casas’s claim raises a question of law based on an interpretation of the Arbitration Agreement. Accordingly, we review the claim de novo. (See Franco, supra, 39 Cal.App.5th at p. 227 [” ‘Interpreting a written document to determine whether it is an enforceable arbitration agreement is a question of law subject to de novo review when the parties do not offer conflicting extrinsic evidence regarding the document’s meaning’ “].)

A. Governing law

In Salgado, supra, 33 Cal.App.5th 356, the Court of Appeal considered the precise question raised by Macias’s appeal:

“An employer and its employee sign an agreement to submit all disputes to arbitration. Does the agreement apply to disputes that have occurred prior to the execution of the agreement?” (Id. at p. 358.)

In resolving this question, the Court of Appeal began by outlining the following well established law governing the interpretation of arbitration agreements:

“An arbitration clause is a contractual agreement. Courts ‘interpret a contract to give effect to the parties’ intentions at the time of contracting.’ [Citation.] ‘When language in a contract is clear and explicit, that language governs interpretation.’ [Citation.]

“Arbitration is a favored procedure. An ‘ ” ‘arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.’ ” ‘ [Citation.] Doubts about the applicability of the arbitration clause to the dispute should be resolved ‘ “in favor of sending the parties to arbitration.” ‘ ” (Salgado, supra, 33 Cal.App.5th at pp. 359–360.)

The Salgado court proceeded to consider two provisions in the arbitration agreement at issue in that case. The first provision provided in relevant part: ” ‘The Company and I agree and acknowledge that we will utilize binding arbitration as the sole and exclusive means to resolve all disputes which [1] may arise out of or [2] be related in any way to my application for employment and/or employment . . . .’ ” (Salgado, supra, 33 Cal.App.5th at p. 360, italics added in Salgado.) The Salgado court rejected the employee’s contention that the words “may arise” in this provision, operated to limit the claim to disputes that arose after the signing of the agreement. The Salgado court reasoned:

“[Employer’s] interpretation is reasonable. [Employee] focuses only on one phrase in the arbitration agreement. But the word ‘or’ shows that there is an alternative. [Citation.] Each phrase must be considered. ‘ “Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless.” ‘ [Citation.] The second phrase following ‘or’ broadly applies to ‘all disputes’ related ‘in any way’ to employment. This language is ‘clear and explicit.’ [Citation.] [Employee’s] current action is a dispute that falls within the meaning of this provision.” (Id. at pp. 360–361.)

The Salgado court also considered the meaning of a second arbitration provision, which provided, ” ‘Both the Company and I agree that any claim, dispute, and/or controversy that I may have against the Company . . . or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration . . . .’ ” (Salgado, supra, 33 Cal.App.5th at p. 361, italics added in Salgado.) The Salgado court concluded that this provision also applied to disputes that arose before the signing of the agreement, reasoning:

“This provision is broad in scope. [Citation.] Here the language is ‘clear and explicit.’ [Citation.] There is no language containing a limitation or restriction based on the age of the claim. (Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 877 [(Desert Outdoor)].) There is no qualifying language. This provision unequivocally requires arbitration for ‘any claim’ [employee] has against [employer]. [Employee’s] current lawsuit is such a claim. Her brief does not discuss this provision. Nor has she shown why this language does not apply to the current action.” (Ibid.)

The Salgado court also expressly rejected the employee’s contention that the arbitration agreement could not be applied to disputes that arose before the arbitration agreement was signed:

“[Employee] contends arbitration is not applicable because the dispute involved in her lawsuit occurred before the arbitration agreement was signed.

“But the ‘contention that an agreement to arbitrate a dispute must pre-date the actions giving rise to the dispute is misplaced. Such a suggestion runs contrary to contract principles which govern arbitration agreements.’ (Zink[, supra], 13 F.3d [at p.] 332.) ‘[A]n arbitration agreement may be applied retroactively to transactions which occurred prior to execution of the arbitration agreement.’ (Merrill Lynch, Pierce, Fenner & Smith, Inc. v. King (M.D.Fla. 1992) 804 F.Supp. 1512, 1514; see Shotto v. Laub (D.Md. 1986) 632 F.Supp. 516, 522 [‘whether plaintiffs signed the agreements before or after opening their accounts, or even before or after the claim arose, does not change the fact that they signed written agreements to arbitrate claims arising out of their account’]; see also [Desert Outdoor], supra, 196 Cal.App.4th at p. 877 [the broad language of the arbitration agreement applied to a dispute occurring before the signing of the arbitration agreement]; In re Currency Conversion Fee Antitrust Litigation (S.D.N.Y. 2003) 265 F.Supp.2d 385, 407 [the broad language—’ “any dispute, claim, or controversy . . . arising out of or relating to this Agreement, your Account . . .” ‘—required arbitration for claims plaintiff had prior to agreeing to arbitration].)” (Salgado, supra, 33 Cal.App.5th at pp. 361–362, italics added.)

In Franco, the Court of Appeal applied Salgado in concluding that the “[p]lain [l]anguage” (italics omitted) of an arbitration provision applied to “claims that already existed at the time plaintiff signed the Agreement.” (Franco, supra, 39 Cal.App.5th at p. 228.) The Franco court reasoned in part:

“In his appellate respondent’s brief, plaintiff argues that already accrued claims at the time an arbitration agreement is executed are not subject to arbitration unless they are otherwise expressly referenced in that agreement. It is reasonable to interpret the Agreement’s reference to ‘pre-hire’ claims as such an express reference to require the arbitration of claims that accrued prior to execution of the Agreement. But even if that were not so, the Salgado court rejected the argument that claims that have accrued before an arbitration agreement is executed are generally excluded from arbitration . . . .” (Id. at p. 230.)

B. Application

Salgado and Franco are both directly on point and make clear that the trial court erred in concluding that the Arbitration Agreement could not apply to “conduct occurring before its effective date.”

The Arbitration Agreement at issue in this case broadly provides that “any controversy or claim arising out of or relating to your employment relationship with CASAS or the termination of that relationship, must be submitted for non-binding mediation before a third-party neutral and if necessary for final and binding resolution by a private and impartial arbitrator.” (Italics added.) As in Salgado and Franco, “There is no language containing a limitation or restriction based on the age of the claim.” (Salgado, supra, 33 Cal.App.5th at p. 361; Franco, supra, 39 Cal.App.5th at. p. 230 [applying arbitration provision to a dispute that arose before execution of agreement in part because “there is no language containing a limitation or restriction based on the age of covered claims”]; accord Desert Outdoor, supra, 196 Cal.App.4th at p. 877 [applying arbitration clause to alleged malpractice that occurred before execution of agreement containing arbitration clause because “[t]here is no temporal limitation” in clause].) Thus, for the reasons stated in Salgado and Franco, we conclude that the Arbitration Agreement contains ” ‘clear and explicit’ ” language demonstrating that it may be applied to conduct that occurred before the signing of the Agreement. (Salgado, supra, 33 Cal.App.5th at p. 361; see Franco, supra, at p. 230.)

Macias contends that Salgado is distinguishable because it “dealt with a mutual arbitration, which is not the situation in this case.” Even assuming, strictly for purposes of argument, that the Arbitration Agreement required only Macias, but not Casas, to arbitrate disputes, Macias offers no argument as to why any purported lack of mutuality as to the arbitrability of claims is relevant in interpreting the temporal reach of the Arbitration Agreement, and we perceive no such relevance. Macias also asserts that Salgado relied on “inapplicable [f]ederal authority,” without presenting any argument as to why the federal cases cited by the Salgado court were wrongly decided or should not be considered to be persuasive authority.

With respect to Franco, Macias argues that the arbitration agreement in that case is distinguishable from the Arbitration Agreement in this case because the arbitration agreement in Franco “explicitly stated” that it applied to claims ” ‘pre-hire through post termination.’ ” (Quoting Franco, supra, 39 Cal.App.5th at p. 230.) We are unpersuaded. We assume for purposes of argument that the Arbitration Agreement in this case, unlike the agreement in Franco, does not contain a provision that may reasonably be interpreted as “express[ly] . . . requir[ing] the arbitration of claims that accrued prior to execution of the Agreement.” (Ibid.) However, even assuming this to be the case, the Franco court made clear that an express provision authorizing the arbitration of disputes that accrued prior to the execution of the agreement is not required in order for an arbitration agreement to apply to conduct that occurred before the signing of the agreement. (See ibid. [“It is reasonable to interpret the Agreement’s reference to ‘pre-hire’ claims as such an express reference to require the arbitration of claims that accrued prior to execution of the Agreement. But even if that were not so, the Salgado court rejected the argument that claims that have accrued before an arbitration agreement is executed are generally excluded from arbitration” (first italics added)].)

Macias also argues that the trial court properly relied on CarMax, supra, 224 Cal.App.4th 1233, in denying the petition. CarMax is inapposite because the case did not involve the question whether a signed arbitration agreement could be applied to conduct that occurred prior to the signing of the agreement. Rather, in CarMax, the Court of Appeal considered whether the trial court had properly determined that an arbitration agreement was illusory because the employer retained the right to alter the agreement and rules related thereto after the parties had signed the agreement (id. at p. 1235), a question that is not presented in this case.

The employer in CarMax hired an employee in 2008, and terminated the employee’s employment in 2010. (CarMax, supra, 224 Cal.App.4th at p. 1235.) In 2012, the employee sued the employer. (Ibid.) The employer filed a motion to compel arbitration based on an arbitration agreement that the employee signed in 2008, as part of the employee’s application for employment. (Ibid.) The employee had acknowledged receipt of the dispute resolution rules and procedures (DRRP) governing any arbitration as part of his application for employment. (Ibid.) The trial court denied the motion to compel on the basis that the “arbitration agreement [was] ‘illusory’ because the DRRP gave [employer] the right to alter or terminate the agreement and the DRRP.” (Ibid.)

The Court of Appeal reversed the trial court’s order denying the motion to compel. (CarMax, supra, 224 Cal.App.4th at p. 1238.) The Court of Appeal reasoned that the fact that the DRRP permitted the employer to modify the arbitration agreement did not render the arbitration agreement “illusory, because the agreement also contains an implied covenant of good faith and fair dealing.” (Id. at p. 1237.) The Court of Appeal also concluded that, to the extent a rule in the DRRP might be read to subject a claim to a modified arbitration agreement if the claim arose before the effective date of a modified arbitration agreement but was not submitted to arbitration until after the modification, such a rule would render the contract illusory. (Ibid.) However, the CarMax court ruled that a separate rule in the DRRP made clear that the modified arbitration agreement would not be applied to claims that arose before modification and thus “[t]he modification clause in the CarMax DRRP does not invalidate the arbitration agreement.” (Ibid.)

CarMax thus stands for the proposition that a provision permitting a party to unilaterally modify an arbitration agreement may render the arbitration agreement illusory under certain circumstances, and that a court will interpret a party’s arbitration agreement and related rules to prevent rendering the agreement illusory, to the extent possible. However, CarMax does not stand for the proposition that an arbitration agreement that a party signs in which the party agrees to arbitrate a certain set of disputes, without temporal limitation, may not be applied to conduct that occurred prior to the signing of the agreement.

Macias’s reliance on Cobb v. Ironwood Country Club (2015) 233 Cal.App.4th 960 (Cobb) and Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50 (Avery) is similarly misplaced. In both cases, the Court of Appeal ruled that the implied covenant of good faith and fair dealing prevented a defendant from unilaterally modifying an agreement to apply an alternative dispute resolution process to a plaintiff’s accrued claim. (See Cobb, supra, at p. 968 [noting the absence of “authority for enforcing a unilaterally imposed retroactive arbitration agreement on a party who has not expressly consented to that retroactive application—which is what [defendant] is attempting to do here” (italics altered)]; Avery, supra, at p. 61 [“an employer may not make unilateral changes to an arbitration agreement that apply retroactively to ‘accrued or known’ claims because doing so would unreasonably interfere with the employee’s expectations regarding how the agreement applied to those claims” (italics added)].) That principle has no application here, since Casas is not attempting to apply a unilateral modification to an employee handbook. Rather, Casas is seeking to enforce an Arbitration Agreement that Macias signed, which requires the arbitration of all employment-related disputes without temporal limitation. Salgado and Franco make clear that such an arbitration agreement may be applied to claims that accrued prior to the signing of the agreement.

Accordingly, we conclude that the trial court erred in denying Casas’s petition to compel arbitration on the ground that the Arbitration Agreement could not be applied to pre-Agreement conduct.

IV.

DISPOSITION

The order denying the petition to compel is reversed. The matter is remanded to the trial court with directions to consider Casas’s petition to compel arbitration and Macias’s opposition, in a manner consistent with this opinion.

Casas is entitled to recover costs on appeal.

AARON, J.

WE CONCUR:

MCCONNELL, P. J.

HALLER, J.