Odell v. The Salvation Army
| Decision Date | 23 July 2021 |
| Docket Number | B306219 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KARLA ODELL, Plaintiff and Respondent, v. THE SALVATION ARMY, Defendant and Appellant. |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV10500 Robert S. Draper, Judge.
Littler Mendelson, Kara L. Jassy and Miranda A. Mossavar, for Defendant and Appellant.
Krieger & Krieger, Linda Guthmann Krieger, Lawrence R Cagney and Laura P. Birnbaum, for Plaintiff and Respondent.
The Salvation Army appeals from the trial court's denial of its motion to compel arbitration of claims brought by a former employee, respondent Karla “Karly” Odell. The Salvation Army sought to compel arbitration pursuant to either: (1) a proffered written agreement bearing Odell's purported signature; or (2) an implied-in-fact agreement, which Odell allegedly had entered into by remaining employed after she received a copy of the proffered agreement. The Salvation Army also argued the court was barred from deciding whether Odell had entered into the proffered agreement, as the agreement delegated issues concerning its formation to an arbitrator. Odell denied that she had signed the agreement, received a copy of the agreement during her Salvation Army employment, or received notice from the Salvation Army that her continued employment would bind her to arbitration. The Salvation Army produced no contrary evidence from anyone purporting to have personal knowledge of the execution of the proffered agreement, instead principally relying on an expert declaration opining that Odell's disputed signature was authentic. The court denied the motion, finding the Salvation Army failed to meet its burden to authenticate Odell's disputed signature, and therefore failed to prove the existence of an arbitration agreement.
On appeal, the Salvation Army contends the trial court erred by (1) failing to delegate to an arbitrator the issue whether an arbitration agreement had been formed; and (2) finding the Salvation Army failed to meet its burden on this issue. In support of the latter contention, the Salvation Army argues the court erred by: (a) purportedly finding the proffered agreement invalid, even if Odell had signed it, because no agent of the Salvation Army had signed it at the same time; (b) imposing a burden on the Salvation Army to authenticate Odell's disputed signature; (c) finding that the Salvation Army failed to meet this burden; and (d) failing to find that Odell had entered into an implied-in-fact agreement by remaining employed after receiving a copy of the proffered agreement. Finding no error, we affirm.[1]
In March 2016, the Salvation Army hired Odell, a state-accredited counselor, for a counseling position. On March 24, 2016, she met with human resources employee Gail Bergman and signed various documents related to her employment. The parties dispute whether these documents included the proffered arbitration agreement.
Throughout her employment, Odell (who was in her mid-50s) was allegedly subjected to a host of ageist and sexist comments and actions. She also was allegedly paid less than a male peer, required to work overtime without pay, and denied meal and rest periods. In May 2017, Odell attempted to intervene in a coworker's alleged mistreatment of a Salvation Army beneficiary, who died by suicide almost immediately after the mistreatment. Odell reported her coworker to human resources and, within days, received notice from a state agency that a formal ethics complaint had been filed against her (allegedly on her supervisor's orders), endangering her counseling credentials. Soon thereafter, Odell was terminated.
In March 2019, Odell filed a complaint against the Salvation Army that included 12 causes of action: (a) four for violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.); (b) three for violations of various sections of the Labor Code; (c) two for termination in violation of public policy; (d) one for intentional infliction of emotional distress; (e) one for violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.); and (f) one under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).
In June 2019, the Salvation Army filed a motion to compel arbitration of Odell's claims (with the exception of her PAGA claim, which it moved to stay).[2] It submitted a declaration executed by Cynthia Minnicucci, then employed as a director of human resources. Minnicucci did not state whether she had been employed by the Salvation Army during Odell's employment. She declared that it was the custom and practice of Odell's former office to distribute an arbitration agreement to employees upon hire. She continued, Minnicucci attached the proffered agreement, which she declared was maintained in Odell's personnel file in the ordinary course of business.
The proffered agreement bore two signatures: (1) Odell's disputed signature, dated March 24, 2016 (the date of her meeting with Bergman); and (2) on behalf of the Salvation Army, the signature of Man-Hee Chang, dated February 17, 2015 (more than a year before that meeting). Chang was not identified by title, and the Salvation Army produced no evidence of his identity. The proffered agreement provided that Odell and the Salvation Army mutually consented to arbitration of all claims arising out of or related to Odell's employment. It continued, “Covered claims also include any disputes regarding this Agreement or any portion of the Agreement or its interpretation, enforceability, applicability, unconscionability, arbitrability[, ] or formation, or whether the Agreement or any portion of the Agreement is void or voidable....” It also provided, The proffered agreement did not state that Odell's continued employment alone (independent of her signature on the agreement) would bind her to arbitration.
Relying on Minnicucci's declaration, the Salvation Army argued that Odell had signed the proffered agreement. It further argued that the agreement delegated to an arbitrator the issue whether Odell had signed it, by (1) stating that disputes regarding the agreement's formation were subject to arbitration; and (2) incorporating the AAA rules, which reportedly included a rule empowering the arbitrator to rule on any objection concerning the existence of an agreement.[3]
In the alternative, the Salvation Army argued the court should enforce an implied-in-fact arbitration agreement. Again relying on Minnicucci's declaration, it argued Odell received a copy of the proffered agreement when she was hired. It further argued that by remaining employed after receiving this copy, Odell had accepted the Salvation Army's offer to enter into an implied-in-fact arbitration agreement.
In opposition to the Salvation Army's motion, Odell declared that she had neither signed the proffered agreement, nor received a copy of it during her Salvation Army employment.[4] She further declared, Finally, Odell declared that she had never met or even heard of Man-Hee Chang, the other signatory.
In reply, the Salvation Army submitted a declaration executed by “handwriting and questioned document examiner” James Black. Black declared that he had examined Odell's disputed signature for evidence of “simulation” (i.e., “reproduction of the signature of another... with the intent that it pass as genuine”), and found none. He also had examined the disputed signature microscopically and found that it was composed of ink, eliminating the possibility that it was “lifted from another document.” Finally, he had compared the disputed signature to “Exemplars” of Odell's signature, comprising 41 documents undisputedly signed by Odell during her employment with the Salvation Army. He had found that the disputed signature's characteristics fell within “the range of normal variation as defined by the Exemplars.” On the basis of these findings, he opined that Odell's disputed signature was authentic. Black did not describe any of the signatures' characteristics, or identify similarities or differences among them.
The Salvation Army also submitted a declaration executed by Eric Hansen, who (like Minnicucci, its earlier declarant) was then employed as a human resources director. Like Minnicucci Hansen declared on information and belief that Odell received a copy of the proffered agreement when she was hired. Hansen further declared that it was the Salvation Army's custom and practice to send a letter to any employee who refused to sign an arbitration agreement, notifying the employee that her continued employment would constitute acceptance of the terms of the agreement. He did not claim that any...
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