Patchy Record Also Didn’t Help Appellant
When footnote 1 of an opinion begins, “Appellants omitted several key documents . . . “, followed by, “We therefore have little information . . . “ it does not augur well for the appellant.
An augur holding a lituus, the curved wand often used as a symbol of augury on Roman coins. Wikipedia.
This case arose from an employment suit. Because the Employment Handbook provided for settling disputes “exclusively by final and binding arbitration,” the employer moved to compel arbitration. The trial court denied the motion to compel arbitration, and the employer appealed. Tisor v. Marketshare Partners, LLC, Case No. A134327 (1st Dist. Div. 4 September 13, 2012) (Sepulveda, J., author) (unpublished).
The employee had allegedly signed an acknowledgment that “none of the statements in the handbook (other than this Acknowledgment and the agreement to arbitrate) are intended to create any contractual or other legal obligations. I also understand that [MarketShare] may at any time modify or rescind any policy, benefit or practice described in the handbook, except for its policy of at-will employment, the arbitration agreement and policies required by law.” The Handbook was 41 pages long. (Seems like opinions that deny a motion to compel arbitration often mention the length of the document in which the arbitration provision is to be found).
Here’s the rub: the arbitration provision contained lines for dates and signatures of the employee and the employer, neither of which was signed or dated. Therefore, the one part of the Handbook intended to create legal obligations, and contemplating a signature, was unsigned. Concluding that the Handbook “contemplated that the arbitration of disputes provision would be effective only if both [employer and employee] assented to that provision” (Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co., 68 Cal.App. 4th 83, 91 (1998)), the Court of Appeal affirmed. Well, this one didn’t look good for the appellant from the get-go (footnote 1, supra).
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