be placed on equal footing with all other contract formations and we have in this case a person who receives an offer letter a job offer letter which is certainly on its face a contract and it says as a condition of employment you will be required to sign an arbitration agreement and then the offer letter says by signing this offer letter you have agreed to all of our terms and conditions of employment including the arbitration agreement which he's agreed to sign yes which he's agreed to sign right then where is the signed arbitration agreement the parties cannot find the signed arbitration agreement but plaintiff doesn't sell you he would have you would have been in control of the arbitration agreement three we would have been in control of the arbitration agreement as as the record shows there are missing things from the plaintiff's personnel file and the plaintiff in itself though in his testimony as we cite in our reply papers does not say that he refused to sign or did not sign the arbitration agreement he merely says i can't recall seen it and i can't recall signing it and so we don't even have the plaintiff's repudiating that there was a contract when the plaintiff then becomes an employee and goes through what is referred to as the on boarding process he signs an agreement for confidentiality and the confidentiality agreement says that any disputes will be resolved based on the mutual agreement arbitrate claims which has been signed by you and the company and so we have any dispute over this agreement meaning the inshallah the agreement correct yes but the confidentiality agreement doesn't have its own arbitration the points to the signed it arbitration agreement it points to was signed arbitration agreement and incorporates it by reference and in incorporation by reference can be of a different subject matter than the document that incorporates it as justice i'm sorry judge progress and wrote in the notes and is the sirius x m radio case shortly after the briefing here was completed and off three knowing not an offer has been made to him but not knowing all of its terms may be held to have accepted whatever the terms are that the offer contains by signing both the offer letter and the confidentiality agreement that case involve arbitration yes yes that was the case where somebody purchased a choice and than if there was an arbitration agreement with a satellite radio provider sirius radio and the court held that the arbitration agreement for sirius radio was not made available to the yeah but you know this you know need and you've got to give up on your rights and you know in this case your honor there is no contract of adhesion and plaintiff admits that it was in an offer letter that he was free to negotiate and the offer is is not arguing procedural on constant ability and and looking out the arbitration agreement itself it can't be charged with substantive unconscionable that he and and and the ninth circuit and the california supreme court and the u recall it and the then you don't have it and we don't have it but yeah you don't have it you don't have anybody who was there at the time we don't have any so you don't have anybody say well i watched him sign we don't have anybody that was there at the time but we do place the other contracting party on notice that they are entering into a contract and by signing that contract they're green to arbitration and the california court of appeal in the cruise case held that just a reference to you're going to have to arbitrate on a job that is the case is entitled to know what i mean it what the terms of the arbitration agreement are yes and so the offered letter says that if you would like to receive copies of these documents which include the arbitration agreement or our benefit plans or other company policies ask human resources for them and you can review them before signing the offer letter and the cases involving incorporation by reference that you have to identify the contract not the content but just identify the contract well enough so that the other party can understand that there is something else in this case we offered the contract to him we offered him the time to review the contract before signing and when he became on board of the company he also had an opportunity to review it again he says i don't remember i read some things in more detail than i read other things but he then do you even know from this record whether the arbitration agreement was even presented teen for review the record shows that on a new hire checklist there was a check mark showing that the arbitration agreement was presented and signed and we have testimony from the human resources representative who was available after the lawsuit was filed who says that it has been our standard practice to process right yes so so so then those documents that were presented and signed i think he will be put in his personnel file presumably presumably your honor although and so all of a sudden the absence employment were not of the head wear and oral yes have been held to create an enforceable arbitration agreement there's there is no requirement that a a contract  arbitration agreement which has to be treated the same as other contracts be placed in somebodies personnel file well i mean you know what does it mean it's got a check mark does that that mean he signed it does that mean it was just presented to him does that mean it was plaintiff worked at this company for four years after this process never refuted the arbitration agreement never saw the same time you would think that if they had this checklist is as judge when just noted that if you went to his personnel file you would be non disclosure agreement and the time nine employment eligibility verification w for tax withholding and the testimony in the record shows that a number of those documents are also missing from the personnel  this instance was not perfect it rarely is in cases where there are multiple directors of personnel go through a hoop and he who pays for the arbitration become he pays entirely for the arbitration all of the rights afforded under the federal rules of civil procedure are provided for in the arbitration agreement and the arbitration agreement even the other side does not contend is in any way u nconscionable i mean the only thing that it removes is a jury but it provides every other right that a title seven or state discrimination but again would have in a civil  mediators and so the yard will reach wonders accompany you it can be selected by the parties in the arbitration it there's no requirement to use one or the other the panels at each of these organizations are very robust sometimes judges move from one organization to another and so this gives the parties more flexibility in who they choose that's probably one of the worst things that happen the main california case that you rely on with the strongest case that supports your argument probably the cruise case decided in two thousand and fourteen where somebody signed a job application and the arbitration agreement itself wasn't even created at the time the application was signed and the court held that the parties had entered into a binding arbitration agreement because there was an expression of mutual intent and there again unlike in our case where we have a full blown arbitration agreement with all of the bells and whistles that this is that has accepted case we the agreement there the underlying agreement require a signed arbitration agreement if younger line agreement again your honor was not even created at the time that the job application was signed it just said you'll be subject to a war arbitration program and the record in that case showed enforceable without a signature and in this case there is a signature promising to sign in order to adopt a type of piecemeal theory of contracts where somebody has to sign at every stage is contrary to eighteen t concepcion and contrary to notes on which both hold that an arbitration agreement is subject to the same terms of contract formation as any other contract how do you distinguish this case from meat three which is such a california case i think that in two thousand and seven where the well that was a separate offer of employment letter or employee handbook references arbitration but said that it will be signed and defendants there didn't produce the signed copy and so therefore they loose isn't that the situation now your honor i not in the there were two documents one document referenced arbitration and it was not signed and another document did not reference arbitration and it was signed there were two sections of the employer you can book there was a section that the  plaintiff side which did not incorporate an arbitration agreement by reference and then there was another section of the employee handbook containing the arbitration clause that the employee did not suffer and in that case the plaintiff also repudiated and said i'm not going to sign an arbitration remit and so that cases is much different from our case where there is a document that expressly incorporates the arbitration agreement that the plaintiff did sign and in this case he signed it twice ok i think you're over your time so let me let's hear from the other side agreement to arbitrate his fee hot and discrimination claims the evidence is clear that mr sutcliffe did not receive or see this mutual agreement to arbitrate claims until for the first time it was presented in connection with this motion so not only did he not sign it he never was provided with a copy at this in terms of the documents that he received at the time of hire he recalls receiving the confidentiality agreement which he signed which i'll mention in a second and several other documents that he testified he kept in a binder at home there was no mutual agreement to arbitrate claims provided to him in terms of what he did sign i think it's very was pretty clear though that the offer letter made reference to an arbitrary you'd be required to sign an arbitration agreement the morning though is very particular i think needs to have close attention paid to in his offer letter it states that you will be required to sign a confidentiality and invention agreement the next line is you will also be required to sign a mutual agreement to arbitrate claims there's no reference to all claims there's no reference to all employment related claims there's no reference to discrimination claims it just simply all claims not knowing what that is not all claims it's similar to this is i will also be required to sign a mutual agreement sort if you don't know what now then turning to the confidentiality and invention agreement which he did sign that agreement says all disputes about this agreement the confidentiality invention agreement will be subject to this separate mutual agreement to arbitrate claims taking those two documents in conjunction with each other reasonable interpretation could be i think would be that this mutual arbitrate claims it's referenced and the offer letter is in fact this mutual agreement to arbitrate the confidentiality and invention claims if there are any concerning that agreement there is nothing of any in any documents he signed again which signify that all claims are off any claims concerning your terminations or discriminate any any of that language that would typically alert employees what claims they required arbitrate none of that was provided to him  under the court's precedent and pretty prevention versus law if a ploy is not on notice of what claims are going to be subject to arbitration there is no binding arbitration agreement i'd like to address with the basis of  agreement he says there well there is an implied agreed well to address that that mitri case that your honor pointed out is exactly on point and there are other cases well as well in california law that says if  phone ploy or requires tells employees you're required to sign an arbitration agreement there could be no implied agreement the employer makes that express and if it's exists and express agreement is required the employer has to get the employed find that express agreement in mitri the employee didn't repudiate it was exactly the same as in this case the employee just in signed was never presented with the agreement as in this case mr sokol off never was presented with an agreement to  then counsel's other argument is well it's incorporated by reference if you look at the wording of the agreements there's no incorporation by reference language there's no there's nothing to incorporate it by reference if he wanted it to be incorporated by reference it would need to be some indication of that which there is not in the cruise case of cruise versus kroger that ellen's council mentioned the employee in that case signed an application which spells out you're subject to mandatory and binding arbitration i agree to abide by the company's arbitration policy i agree when the language was set out in the application itself that the employee signed also in that application in the cruise case there was a reference to the arbitration agreement specifically is incorporated by reference that language was in the application the employee signed course here none of that is the case so in the chris case the language in the application itself that the plaintiff signed a green to that mandatory arbitration policy was sufficient to establish an agreement in of itself here there is simply no evidence that mr so ever agreed to arbitration in this case though your honor i know we went well beyond that i just wanted to clarify two points that that council made the job offer letter doesn't cooperate to mutual agreement to arbitrate claims by reference it says by signing this offer letter you are green to all of our all of l or ns rules policies and procedures which then when he becomes employed include a mutual agreement to arbitrate claims he is agreeing to agreed and that is an offer for an enforceable contract a contract as as judge prager's and wrote in the notes in case can be accepted and as you just mentioned by conduct by accepting the job offer on the condition of arbitration mr sokolove agreed to arbitration and the mutual agreement to arbitrate claims which there is no dispute was always available to him includes all employment related claims including statutory non discrimination claims but that case  it's an arbitration agreement and just because it's giving up substantive rights such as non discrimination claims it still needs to be placed on equal footing with all other contract formation and all other rules for is there an enforceable contract it can't be held to a higher says the