Filed 5/17/16 Joyce v. Volt Management Corp. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JUAN CARLO JOYCE, D067867 Plaintiff and Respondent, v. (Super. Ct. No. 37-2014-00036844- CU-WT-CTL) VOLT MANAGEMENT CORP. et al., Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.

Paul, Plevin, Sullivan & Connaughton, Aaron A. Buckley, Corrie J. Klekowski and Michael J. Etchepare for Defendant and Appellant Volt Management Corp. Seyfarth Shaw, Colleen M. Regan, Kiran A. Seldon and Jennifer L. Gentin for Defendants and Appellants Solar Turbines Incorporated and Greg Robertson.

The Ahrens Law Office, Kimberly A. Ahrens; Law Office of Johanna S.

Schiavoni and Johanna S. Schiavoni for Plaintiff and Respondent.

I.

INTRODUCTION Juan Carlo Joyce filed a complaint against Volt Management Corp. (Volt), Solar Turbines Incorporated (Solar), and Greg Robertson (collectively "appellants"), alleging workplace harassment based on sexual orientation, among other causes of action.

Appellants filed a petition to compel arbitration. The trial court denied the petition on the ground that appellants had not established that Joyce manifested his assent to be bound by a valid arbitration agreement.

On appeal, appellants claim that the trial court erred in denying the petition, providing three arguments in support of this claim. First, appellants contend that Joyce assented to an arbitration agreement by signing an employment agreement with Volt that contained an arbitration provision. We conclude that the trial court did not err in finding that appellants failed to establish that Joyce signed the employment agreement.

Appellants also claim that Joyce assented to an arbitration agreement by signing an acknowledgement attesting to his receipt and review of an employee handbook that contained an arbitration agreement. We conclude that the trial court properly determined that the arbitration agreement in the employee handbook was not enforceable because it was expressly superseded by a separate employee orientation guide. Finally, citing Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420 (Craig), appellants claim that Joyce implicitly assented to an arbitration agreement by continuing to work at Volt after becoming aware of the existence of Volt's arbitration agreement. We reject this argument, based on two cases that have concluded that Craig is "inapposite" where, as in this case, the agreement that contains the arbitration provision requires that the employee sign the agreement in order for it to be effective. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1172 (Mitri); see Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1509 (Gorlach).) Accordingly, we affirm the trial court's order denying appellants' petition to compel arbitration.1 II.

FACTUAL AND PROCEDURAL BACKGROUND A. Joyce's complaint In October 2014, Joyce filed a complaint that contained the following allegations.

Joyce is a gay man and is in a same sex marriage. In June 2012, Volt hired him to work as a temporary employee assigned to work for Solar.2 Joyce married his longtime partner on July 10, 2013. Shortly thereafter, Joyce revealed his sexual orientation and same-sex marital status to Robertson, his direct supervisor.

In the wake of these revelations, Joyce was "subjected to consistent, unwelcome, harassing, inappropriate and derogatory comments regarding [his] sexual orientation . . . ." Robertson engaged in several discriminatory acts against Joyce based on his sexual orientation including: denying him employment opportunities, issuing

On February 25, a fellow employee reported to Joyce that her manager had made sexually harassing comments to her. Joyce reported the manager's conduct to a regional manager because he reasonably believed that such conduct was illegal and violated company policies. On February 28, Solar terminated Joyce's employment.

Joyce 's complaint contained seven causes of action: harassment based on sexual orientation and intentional infliction of emotional distress (against all defendants); discrimination based on sexual orientation, and failure to prevent harassment, discrimination and/or retaliation (against Volt and Solar); and retaliation, wrongful termination, and negligent training and supervision (against Solar).

B. Appellants' petition to compel arbitration Appellants filed a petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2 (Section 1281.2).3 In a supporting brief, appellants stated that Volt is a contingent staffing provider that has a contract with Solar to provide temporary

Volt and you hereby waive our respective rights to trial by jury and any cause of action or defense that we may have against each other or against any Client of Volt. This agreement to arbitrate disputes does not prevent you from filing a charge or claim with any governmental administrative agency as permitted by applicable law." (Boldface omitted.)

Appellants also stated that, at the time he was hired, Joyce signed an acknowledgment verifying his receipt of an employee handbook (Employee Handbook) containing an arbitration provision (Handbook Arbitration Provision) that is substantially similar to the Employment Agreement Arbitration Provision.

Appellants contended that Joyce and Volt "entered into a valid, binding, and mutual arbitration provision contained in both the one-page Employment Agreement and the Employee Handbook." Appellants further argued that an employee may manifest his assent to an arbitration agreement by way of "continued employment." Appellants argued: "Joyce signed the Employment Agreement confirming that he read and agreed to be bound by the arbitration provision. [Citations.]

Joyce then continued his employment until his resignation in February 2014. [Citation.] These facts satisfy the offer, acceptance, and consideration requirements for contract formation." (Fn. omitted.)

Appellants argued that Solar and Robertson could enforce the arbitration provision as third-party beneficiaries of the Employment Agreement Arbitration Provision and the Handbook Arbitration Provision.

In support of the petition, Volt lodged several exhibits, including a copy of the Employment Agreement (Def. Exhibit 1), a copy of the Employee Handbook, and a copy of Joyce's signed Employee Handbook acknowledgement form.

Volt also lodged a declaration from its director of human resources, Kendra Bellman. Bellman stated that she had reviewed Joyce's personnel file, which was maintained in the regular scope of Volt's business. Bellman further stated: "Volt hired Joyce to work as a Controls Manufacturing Engineer on assignment to Solar in June 2012. It is Volt's policy, practice and procedure to have all employees complete and execute an Employment Agreement upon hiring. The Employment Agreement contains an arbitration provision in paragraph 8. . . .[4] "5. On May 21, 2012, Joyce . . . signed an acknowledgment verifying his receipt of the Volt Employee Handbook."

C. Joyce's ex parte application Prior to filing an opposition to the petition, Joyce filed an ex parte application seeking an order permitting Joyce to depose Casey Wood, the individual who signed the Employment Agreement on behalf of Volt, and permitting Joyce to depose Volt's person most qualified concerning the existence of any arbitration agreements between Joyce and Volt. In a brief in support of the application, Joyce argued that he "dispute[d] the existence of any arbitration agreement covering his claims . . . ." Volt filed an opposition to Joyce's application. Volt argued that its filing of a petition to compel arbitration mandated a stay of all proceedings in the litigation pending a decision on the petition. In addition, Volt argued that Joyce had not demonstrated good cause justifying the taking of the depositions. In support of this contention, Volt argued Joyce "does not state that he intends to make any argument that he did not actually sign the agreement." After a hearing, the trial court denied Joyce's application without prejudice.

D. Joyce's opposition Joyce filed an opposition to the petition to compel in which he argued that appellants failed to meet their burden of establishing the existence of a binding and enforceable arbitration agreement. Joyce stated that he disputed signing the Employment

Agreement, and contended that he had "never seen the Employment Agreement," until the commencement of this litigation.5 In support of his contention that he had not signed the Employment Agreement, Joyce argued that he requested his personnel file in March 2014 and that the Employment Agreement was not provided to him at that time. Joyce also maintained that, although his counsel had requested his personnel file in June 2014, Volt did not produce the Employment Agreement until November 2014, after the filing of this lawsuit. In addition, Joyce noted that Volt failed to submit an affidavit from Wood and had refused to produce Wood for a deposition, despite the fact that the Employment Agreement bore her signature. Joyce also argued that Wood had not been assigned to be Joyce's representative for any portion of his employment with Volt and Joyce did not recall having signed any documents in her presence. Finally, Joyce maintained that there were a number of "inconsistencies and irregularities," with respect to the Employment Agreement that appellants offered in support of their petition, including that information on the form pertaining to his job title and supervisor was incorrect.

With respect to the Employee Handbook, Joyce acknowledged that he had signed an acknowledgement form attesting to his receipt of the handbook, but contended that he did "not receive the actual handbook referenced in the Acknowledgment." Joyce argued further that, even assuming he had received the Employee Handbook, this handbook had been superseded by an orientation guide, the Volt On-Site at Solar Turbines New

Employee Orientation Guide (Orientation Guide), which stated, "I understand that this [Orientation Guide] supersedes any prior handbooks or policy manuals issued by [Volt] . . . ." (Italics omitted.) Thus, Joyce argued that the Handbook Arbitration Provision was not an enforceable arbitration agreement.

Joyce lodged his own declaration as well as a declaration from his counsel.

Among other statements supporting the claims made in his opposition, Joyce stated the following in his declaration: "I received, but do not recall signing, Volt's arbitration agreement contained in the application documents I initially submitted to Volt. . . .

"8. After the instant motion was filed by [appellants], I reviewed 'Defendant's Exhibit 1 - Employment Agreement.' I had never seen Defendant's Exhibit 1 - Employment Agreement until after I filed the instant lawsuit." With respect to the Employee Handbook, Joyce admitting having signed an acknowledgment form attesting to his receipt of the handbook, but contended that he had not actually received the handbook. Joyce also stated the following: "Even if I had received the May 21, 2012 [Employee Handbook], Volt and Solar subsequently issued an entirely different [h]andbook to me on June 4, 2012 [(Orientation Guide)] that expressly supersedes any prior handbook." Joyce also lodged several documents in opposition to the petition, including the unsigned Employment Application that contained an arbitration agreement (Employment Application Arbitration Agreement) and the Orientation Guide referred to in his declaration and opposition.

E. Appellants' replies Volt filed a reply in which it argued that Joyce had signed the Employment Agreement that contained an arbitration provision. Volt argued that the signed Employment Agreement had been found in Joyce's personnel file and urged the trial court to compare the signature on the Employment Agreement with an admitted signature of Joyce's. Volt also argued that Joyce "does not dispute the signature is his." (Italics omitted.) In addition, Volt argued that Joyce had admitted that he had signed an acknowledgement of the Employee Handbook, and noted that the acknowledgement stated, " 'I agree to arbitrate any and all disputes related to my employment or assignment(s) with Volt, as discussed in this [Employee Handbook].' " Volt further contended that the Orientation Guide did not "[r]escind[ ]" the prior Employee Handbook because the two documents "served distinct functions," and that it would be "illogical" to interpret the Orientation Guide as replacing policies outlined in the Employee Handbook.

Volt further contended that Joyce's arguments suggesting that the Employment Agreement had been altered were misleading. In particular, Volt argued that it was "irrelevant" that the Employment Agreement may have contained some "collateral details" that were inaccurate. Volt also argued that Joyce had assented to arbitration because he "admit[ted] . . . receiv[ing] Volt's arbitration policy when he applied at Volt and that he then accepted and continued his employment with Volt for two years." Solar and Robertson filed a separate reply in which they raised arguments not relevant to the issues addressed in this opinion.

F. The trial court's order denying the petition After hearing argument, the trial court entered an order denying the petition. The court reasoned in relevant part: "[Appellants] submit an Employment Agreement dated May 21, 2012 that contains [Joyce's] signature. [Citation.] The Employment Agreement requires binding arbitration . . . . [¶] . . . [¶] [Joyce] denies ever seeing the Employment Agreement until after he filed this lawsuit. [Citation.] [Appellants] bear the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. [Citation.] [Joyce] has raised significant questions regarding the document's authenticity. When he was hired, [Joyce] received but did not sign a different document that contained an arbitration provision. [Citation.] [Joyce] requested his personnel file a few days after his termination but he was not given the signed Employment Agreement. [Citation.] [Joyce's] counsel was not provided the signed agreement until mid-November 2014. [Citation.] The Employment Agreement references a job that [Joyce] was never assigned to, and he does not recall the representative who allegedly signed on behalf of Volt (Casey Wood). [Citation.] When [Joyce] sought to obtain more information regarding the agreement, [appellants] refused to allow [Joyce] to depose Wood. [Citation.]

"[Appellants] also rely on an arbitration provision in the [Employee Handbook]. [Joyce] signed an Acknowledgment stating he received and reviewed the [Employee Handbook]. [Citations.] The Acknowledgment requires arbitration 'as discussed in this [Employee Handbook].' However, [Joyce] never received the [Employee Handbook]. [Citation.] He did, however, receive [the Orientation Guide] at an orientation on June 4, 2012. [Citations.]

The Orientation Guide supersedes 'any prior handbooks or policy manuals' issued by Volt and may be 'updated and/or changed by Volt at any time.' [Citation.] The Orientation Guide is addressed to all Volt employees who work for Volt nationwide. [Citation.] The Orientation Guide does not discuss arbitration. For the purposes of this motion, [Joyce] has proven by a preponderance of the evidence that the [Employee Handbook], was superseded by the Orientation Guide, which does not require arbitration.

"For all these reasons, [appellants] have not established that [Joyce] is bound by a valid arbitration agreement." G. Appellants' appeal Appellants timely appeal the trial court's order denying their petition to compel arbitration. The order is appealable. (Code Civ. Proc., § 1294, subd. (a).)

III.

DISCUSSION The trial court did not err in determining that Joyce had not manifested his assent to be bound by a valid arbitration agreement Appellants contend that the trial court erred in determining that they failed to establish that Joyce had manifested his assent to be bound by a valid arbitration agreement. We first outline the general principles of law governing the enforceability of an arbitration provision, and then address each of the three arguments that appellants advance in support of their claim that the trial court erred in denying their petition to compel arbitration.

A. General principles of law governing the enforceability of an arbitration provision Section 1281.2 provides in relevant part, "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists . . . ."

In Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674 (Ramos), the court outlined the law that a trial court is to apply when presented with a petition to compel arbitration pursuant to Section 1281.2: "[T]he court's first task is to determine whether the parties have entered into an agreement to arbitrate their claims. [Citation.]

Courts 'apply general California contract law to determine whether the parties formed a valid agreement to arbitrate their dispute.' [Citation.] 'General contract law principles include that "[t]he basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contract[ ]." ' [Citation.] 'Contract law also requires the parties agree to the same thing in the same sense.' [Citation.] 'The petitioner [seeking arbitration] bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.' " (Ramos, supra, at pp. 685-686.)

Appellants contend that a trial court must apply the strong public policy in favor of arbitration embodied in the Federal Arbitration Act (9 U.S.C. § 1) (FAA)6 in determining the threshold question of whether the parties entered into an arbitration agreement.

Appellants are correct that there are California cases that state "where a transaction falls under the FAA, even the threshold decision of whether there is an agreement to arbitrate 'must be made " 'with a healthy regard for the federal policy favoring arbitration.' " ' " (Erickson v. Aetna Health Plans of California, Inc. (1999) 71 Cal.App.4th 646, 655; see,

The United States Supreme Court has now clarified that "the presumption [in favor of arbitration] does not apply to disputes concerning whether an agreement to arbitrate has been made." (Applied Energetics, Inc. v. NewOak Capital Markets, LLC (2d Cir. 2011) 645 F.3d 522, 526 (italics added), citing Granite Rock Co. v. International Broth. of Teamsters (2010) 561 U.S. 287, 301 (Granite Rock).) In Granite Rock, the Supreme Court held that the federal policy favoring arbitration applies "only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand . . . ." (Granite Rock, at pp. 301, italics added, 302 ["we have never held that this policy [in favor of arbitration] overrides the principle that a court may submit to arbitration 'only those disputes . . . that the parties have agreed to submit' "].)

B. The trial court did not err in determining that appellants failed to establish that Joyce signed the Employment Agreement Appellants claim that the trial court erred in determining that they had not demonstrated that Joyce manifested his assent to an arbitration agreement by signing the Employment Agreement. Appellants raise three distinct arguments in support of this claim, which we consider in turn.

1. The trial court did not fail to properly apply evidentiary rules for authenticating a writing Appellants claim that the "trial court failed to apply the proper authentication standard" (boldface & capitalization omitted) in concluding that they had not established that Joyce signed the Employment Agreement. This contention raises a question of law that we review de novo. (See Apex LLC v. Sharing World, Inc. (2012) 206 Cal.App.4th 999, 1009 [review of a trial court's "selection of the applicable law . . . is reviewed de novo"].)

Appellants note that a writing may be authenticated by any qualified witness and that a handwriting comparison done by the court is a valid form of authentication.7 Appellants contend that the trial court "failed to apply" these standards pertaining to the

Accordingly, we conclude that the trial court did not "fail[ ] to apply the proper authentication standard" (boldface & capitalization omitted) in determining the authenticity of the Employment Agreement.

2. Appellants' assertion that undisputed evidence in the record establishes that Joyce signed the Employment Agreement is incorrect Appellants also contend that "undisputed evidence proves Joyce signed the Employment Agreement." (Boldface & capitalization omitted.) As noted previously (see pt. II.D., ante), in his declaration Joyce stated: "After the instant motion was filed by [appellants], I reviewed 'Defendant's Exhibit 1 - Employment Agreement.' I had never seen Defendant's Exhibit 1 - Employment Agreement until after I filed the instant lawsuit." (Italics added.)

While appellants interpret Joyce's declaration as stating that Joyce denied "recalling 'seeing' the fully-executed version of the Employment Agreement" (italics added), that is not what Joyce's declaration says. Joyce's declaration states that he had never seen the Employment Agreement prior to his filing of this lawsuit. Further, in its order denying appellants' petition to compel, the trial court stated,"[Joyce] denies ever seeing the Employment Agreement until after he filed this lawsuit." As the trier of fact, the trial court could reasonably find that Joyce's declaration constituted evidence disputing that he had signed the Employment Agreement. Thus, while appellants contend that "Joyce's carefully worded declaration does not actually dispute that the signature on the Employment Agreement was his," the trial court was not required to accept appellants' interpretation of any ambiguity in Joyce's declaration. In addition, as discussed below, Joyce presented evidence, which the trial court credited, that supported a finding that Joyce had not signed the Employment Agreement. Thus, we reject appellants' contention that the "undisputed evidence" (boldface & capitalization omitted) established that Joyce signed the Employment Agreement.

3. There is substantial evidence to support the trial court's finding that appellants failed to establish that Joyce manifested his assent to be bound by a valid arbitration agreement by signing the Employment Agreement Appellants contend that the record lacks substantial evidence to support the trial court's finding that they did not establish that Joyce had manifested his assent to be bound by a valid arbitration agreement by signing the Employment Agreement.

Substantial evidence is evidence that a reasonable person "might accept as adequate to support a conclusion," (Estate of Teed (1952) 112 Cal.App.2d 638, 644), or evidence "that is reasonable, credible and of solid value." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) If there is substantial evidence that supports a disputed finding, a reviewing court must uphold the finding "no matter how slight it may appear in comparison with the contradictory evidence . . . ." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 (Shamblin) ["Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial court's ruling is based on oral testimony or declarations"].)

As discussed above, Joyce submitted a declaration stating that he had never seen the Employment Agreement until after he filed this action. From such declaration the trial court could plainly infer that Joyce had not signed the Employment Agreement. (See Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 630 [in conducting substantial evidence review on review from order denying motion to compel arbitration, reviewing court must "presume the [trial] court . . . drew every permissible inference necessary to support its judgment"].) Thus, Joyce's declaration, by itself, constitutes substantial evidence to support the trial court's finding that appellants failed to establish that Joyce manifested his assent to be bound by a valid arbitration agreement by signing the Employment Agreement. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of a single witness may suffice to constitute substantial evidence].)

Further, the trial court referred to six other facts that it found "raised significant questions regarding the [Employment Agreement's] authenticity," including that the Employment Agreement had not been timely provided to Joyce or his counsel in response to requests for his personnel file. (See pt II.F., ante.) We reject appellants' assertion in their brief that "the evidence that Joyce did sign the Employment Agreement is overwhelming." While appellants contend that the signature on the Employment Agreement is "substantially similar" to a known signature of Joyce's, the trial court was not required to find that Joyce had signed the Employment Agreement based on such comparison. In addition, appellants did not provide a declaration from Wood (the person who purportedly signed the Employment Agreement on Volt's behalf), did not provide a declaration from any employee who either witnessed Joyce sign the Employment Agreement or received the signed Employment Agreement from him, and did not provide a declaration from a handwriting expert attesting that the signature on the Employment Agreement was Joyce's. While appellants were not required to provide such evidence in order to prevail on their petition to compel, the absence of such evidence, when considered in connection with the evidence offered by Joyce in opposition to the petition

to compel, demonstrates that the evidence before the trial court that Joyce had signed the Employment Agreement was far from overwhelming.

Accordingly, although a "contrary finding[ ] could have been made" (Shamblin, supra, 44 Cal.3d at p. 479), we conclude that there is substantial evidence to support the trial court's finding that appellants failed to establish that Joyce signed the Employment Agreement.

C. The trial court did not err in concluding that the Orientation Guide superseded the arbitration provision in the Employee Handbook Appellants contend that the trial court erred in concluding that the Orientation Guide "[n]ullified" the arbitration provision in the Employee Handbook. Specifically, appellants claim that that the trial court erred in interpreting a provision of the Orientation Guide as providing that the Orientation Guide superseded the arbitration provision in the Employee Handbook. We apply the de novo standard of review to this claim because it presents a question of contractual9 interpretation that does not turn on the credibility of extrinsic evidence. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520 [the " 'interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence' "].)

1. Factual and procedural background As noted in part II.D., ante, Joyce acknowledged that, on May 21, 2012, he signed an acknowledgement form attesting to his receipt of the Employee Handbook. The acknowledgement form stated in relevant part, "Except as otherwise stated, I agree to arbitrate any and all disputes related to my employment or assignment(s) with Volt, as discussed in this [Employee Handbook]." Joyce presented undisputed evidence that, on June 4, 2012, Volt and Solar issued the Orientation Guide to him and that he signed a form acknowledging receipt of the Orientation Guide that same day. The acknowledgement form from the Orientation Guide states in relevant part, "I understand that this [Orientation Guide] supersedes any prior handbooks or policy manuals issued by [Volt] . . . ." (Italics omitted.)

2. Governing law a. General rules of contract interpretation "[T]he ordinary rules of contract interpretation" are well established. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608 (Santisas).) The Santisas court described these rules as follows: " 'Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" (id., § 1644), controls judicial interpretation. (Id., § 1638.)

Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.' " (Ibid.)

b. Case law considering whether an arbitration agreement has been superseded by a subsequent agreement In Jenks v. DLA Piper Rudnick Gray Cary U.S. LLP (2015) 243 Cal.App.4th 1, 15-16 (Jenks), the court considered whether an agreement between an employee and his prior employer containing an arbitration provision had been superseded by a subsequent agreement. In Jenks, an agreement related to the termination of the employee's employment (Termination Agreement) provided in relevant part, " 'This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations and agreements, whether written or oral . . . .' " (Id. at p. 15.) The Jenks court concluded that the Termination Agreement did not supersede an arbitration agreement contained in a prior agreement (Offer Letter). In reaching this conclusion, the Jenks court reasoned: "We conclude this clause does not apply to the forum for resolution of disputes, as the Offer Letter does, and therefore does not cancel the Offer Letter's arbitration feature.

"As [employer] observes, the integration clause is explicitly limited to 'the subject matter hereof,' namely, the terms of plaintiff's resignation. The Termination Agreement does not mention arbitration at all, and contains no provisions regarding dispute resolution. Consequently, the identified forum for dispute resolution remains arbitration based on the original Offer Letter." (Id. at pp.

15-16.) (Italics omitted.)

The Jenks court reviewed several cases in which courts had considered similar issues, including Grey v. American Management Services (2012) 204 Cal.App.4th 803 (Grey) and Cione v. Foresters Equity Services, Inc. (1997) 58 Cal.App.4th 625 (Cione).

The Jenks court concluded that the breadth of the subsequent agreement's integration

provision was central in determining whether the arbitration provision in an earlier agreement had been superseded: "Grey is distinguishable from the present case, and from Cione, in that the relevant contract at issue in Grey did not contain the limiting 'with respect to the subject matter of' language found in both the Cione . . . contract and the Termination Agreement here. (Compare Cione, supra, 58 Cal.App.4th at p. 631 [' "This Agreement contains the entire understanding of the parties hereto with respect to the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to in this Agreement" ' (italics added)] with Grey, supra, 204 Cal.App.4th at p. 807 [' "This Agreement is the entire agreement between the parties in connection with Employee's employment with [employer], and supersedes all prior and contemporaneous discussions and understandings" ' (italics added)].)" (Jenks, supra, 243 Cal.App.4th at p. 19.)

3. Application The Orientation Guide states in relevant part, "I understand that this [Orientation Guide] supersedes any prior handbooks or policy manuals issued by [Volt] . . . ." (Italics omitted.) The " 'clear and explicit' " meaning of this provision, interpreted in its " 'ordinary and popular sense' " (Santisas, supra, 17 Cal.4th at p. 608), is that, as the trial court concluded, the Orientation Guide supersedes all of the provisions of the Employee Handbook, including the arbitration provision contained therein.

Appellants do not argue to the contrary. Instead, they argue, "as in Cione, the [Employee] Handbook and the . . . Orientation Guide are not inconsistent on arbitration — the [Employee] Handbook requires arbitration and the Orientation Guide is silent on a

forum for disputes."10 This argument fails for two related reasons. Cione is distinguishable because, as noted by the Jenks court, the integration clause at issue in that case stated that the later agreement constituted " ' "the entire understanding of the parties hereto with respect to the subject matter contained herein." ' " (Jenks, supra, 243 Cal.App.4th at p. 19, quoting Cione, supra, 58 Cal.App.4th at p. 631.) There is no such limiting language in the provision at issue in the Orientation Guide. In a related vein, the arbitration provision at issue in Cione could be given effect because to do so would not be inconsistent with the integration clause. (See Cione, at p. 639 [enforcing arbitration agreement in registration application form where "written employment agreement was reasonably susceptible to the meaning that it did not supersede the [registration application form]"].) In contrast, in this case, giving effect to the arbitration agreement in the Employee Handbook would be wholly inconsistent with the broad provision in the Orientation Guide that states that the guide "supersedes any prior handbooks . . . issued by [Volt] . . . ." (Italics omitted.)

Appellants also argue that it would be "illogical" to "read the . . .Orientation Guide

Accordingly, we conclude that the trial court did not err in determining that the Orientation Guide superseded the arbitration provision in the Employee Handbook.

D. Joyce did not manifest his implied assent to an arbitration agreement by continuing his employment with Volt after learning of the existence of an arbitration agreement Appellants claim that the trial court erred in failing to find that Joyce implicitly manifested his assent to be bound by an arbitration agreement.11 We assume for purposes of this decision that appellants are correct that "[b]ecause the trial court made no factual findings related to Joyce's continued employment (and because there is no dispute of fact with regard thereto), this point of law is reviewed . . . de novo." 1. Governing law In Craig, supra, 84 Cal.App.4th 416, an employer sent a memorandum to all employees that contained the following language: "The enclosed brochure explains the procedures as well as how the Dispute Resolution Program works as a whole. Please take the time to read the material. IT APPLIES TO YOU. It will govern all future legal disputes between you and the Company that are related in any way to your employment." (Id. at p. 419.)

The brochure also "explained the Program's four-step progression — from open access to management, to an informal conference, to mediation, to arbitration," and described the arbitration process. (Craig, supra, 84 Cal.App.4th at p. 419.) The trial court in Craig compelled arbitration based on the memorandum. (Id. at pp. 418-419.)

In their petition to compel, appellants argued, "[b]oth acceptance [of an arbitration agreement] and consideration are shown by an employee's continued employment," and thereafter cited authority relevant to this contention. By raising the contention and citing applicable authority, appellants adequately raised the issue in their petition to compel.

The Craig court rejected the employee's claim that there was insufficient evidence to prove the existence of an agreement to arbitrate. The Craig court noted that a party's acceptance of an agreement to arbitrate may be "implied-in-fact where, as here, the employee's continued employment constitutes her acceptance of an agreement proposed by her employer." (Craig, supra, 84 Cal.App.4th at p. 420.) The Craig court reasoned that there was sufficient evidence to support the finding that the employee had agreed to be bound by the Dispute Resolution Program, including its arbitration provision, because she had had received the memorandum in 1993 and 1994 and had continued to work for the employer until 1997. (Id. at p. 422.)

In Mitri, supra, 157 Cal.App.4th 1164, the court considered whether the Craig court's theory of implied-in-fact assent applied where the document containing the arbitration provision required the employee's signature in order to be effective. The Mitri court concluded that the Craig court's theory of implied assent could not be reasonably applied in such a circumstance: "Unlike the arbitration agreement provision in the Arnel Employee Handbook, the memorandum in [Craig] established in and of itself the employer's dispute resolution program, and did not include an express requirement that its employees sign an arbitration agreement. Therefore, [Craig] is inapposite.

"Defendants also contend the signed arbitration agreement required by the arbitration agreement provision in the Arnel Employee Handbook was impliedly unnecessary to establish an arbitration agreement between Arnel and plaintiffs. However, such an interpretation of the arbitration agreement provision contradicts that same provision's express term requiring a signed agreement. (See Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374 . . . ['implied terms should never be read to vary express terms']; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855, fn. 12 . . . [' "[i]t is universally recognized the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract" '].)" (Id. at pp. 1172-1173.)

Similarly, in Gorlach, supra, 209 Cal.App.4th 1497, the court concluded that Craig does not govern where the document containing the arbitration provision is not unilaterally imposed, but instead requires an employee's signature in order to become effective: "We do not agree that [Craig] governs the present case. In [Craig], the employee memorandum did not ask employees to sign an arbitration agreement; it simply informed them that any employment-related dispute would henceforth be subject to arbitration. The employee handbook in the present case is different: Rather than unilaterally imposing an arbitration requirement, the handbook told employees that, 'As a condition to employment, all Team Members must sign the Mutual Agreement to Arbitrate Claims . . . .' (Italics added.) In other words, the handbook told employees that they must sign the arbitration agreement, implying that it was not effective until (and unless) they did so. Because Gorlach never signed the arbitration agreement, we cannot imply the existence of such an agreement between the parties." (Id. at p. 1509.)

2. Factual and procedural background In their petition to compel arbitration, appellants suggested that Joyce manifested his assent to the Employment Agreement Arbitration Provision and the Handbook Arbitration Provision by continuing his employment after having become aware of each provision.

In his opposition, Joyce denied ever having seen the Employment Agreement Arbitration Provision prior to the commencement of this litigation and claimed that the Handbook Arbitration Provision had been superseded by the Orientation Guide. In his declaration lodged with his opposition, Joyce acknowledged having received, but did not recall signing, the Employment Application Arbitration Provision. The Employment Application contains an arbitration provision identical to that contained in the Employment Agreement. (See pt. II.B., ante.) Near the bottom of the Employment Application, the document contains a space for the applicant's signature, under a line that states, "I/We have read and agree to the above employment terms and conditions." (Boldface & capitalization omitted.)

In its reply, Volt argued that "Joyce admits he received Volt's arbitration policy when he applied at Volt and that he then accepted and continued his employment with Volt for two years." Volt contended that Joyce's continued employment with Volt manifested his intent to be bound by Volt's arbitration policy.

The trial court did not address whether Joyce had assented to an arbitration provision by continuing his employment with Volt after becoming aware of the existence of such provision.

3. Application On appeal, appellants note that the Handbook Arbitration Provision states, "Your continued employment with Volt is your agreement to the above provision requiring arbitration of any and all employment/assignment disputes."12 Appellants also note that

Joyce admitted receiving and signing an Employee Handbook acknowledgement form.

Appellants contend that Joyce manifested his assent to be bound by the Handbook Arbitration Provision by continuing his employment with Volt after executing such an acknowledgement.

This argument fails because we concluded in part III.C., ante, that the Employee Handbook was superseded by the Orientation Guide. Accordingly, even if Joyce did assent to the arbitration provision in the Employee Handbook, the Employee Handbook was superseded by the Orientation Guide.

Appellants also contend that Joyce admitted in his declaration that he " 'received' " the Employment Agreement and that Joyce recalled that the Employment Agreement contained an arbitration policy. Appellants misstate the record. Joyce stated in his declaration that he had not seen the Employment Agreement until after the commencement of this litigation (see pt. II.D., ante), and we have concluded that there is substantial evidence to support the trial court's finding that Joyce did not manifest his assent to be bound by the Employment Agreement. (See pt III.B., ante.) Thus, appellants have not established that Joyce impliedly agreed to the Employment Agreement Arbitration Provision.

Although not expressly referred to by appellants in their brief, we acknowledge that Joyce stated in his declaration that he had seen, but did not recall signing, the

Employment Application, which contains an arbitration provision. However, as with the documents at issue in Gorlach and Mitri, the Employment Application expressly requires a party's signature in order to be effective. (See Gorlach, supra, 209 Cal.App.4th at p. 1509; Mitri, supra, 157 Cal.App.4th at pp. 1172-1173.) We agree with the Gorlach and Mitri courts that a party's assent to a document may not be implied under Craig where the document requires a party's signature in order to be effective. (See Gorlach, at p. 1509 [distinguishing Craig and stating "the handbook told employees that they must sign the arbitration agreement, implying that it was not effective until (and unless) they did so"]; Mitri, at pp. 1172-1173 [same].)13 Accordingly, we conclude that Joyce did not manifest his implied assent to an arbitration agreement by continuing his employment with Volt after learning of the existence of an arbitration agreement.

IV.

DISPOSITION The order denying the petition to compel arbitration is affirmed.

AARON, J.

I CONCUR: PRAGER, J.*

I CONCUR IN THE RESULT: HUFFMAN, Acting P. J.

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.