Filed 9/20/23 Shakespeare v. National Steel and Shipbuilding Co. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

ARCHIE SHAKESPEARE,

Plaintiff and Respondent,

v.

NATIONAL STEEL AND

SHIPBUILDING COMPANY,

Defendant and Appellant.

 D081270

 (Super. Ct. No. 37-2021-

00013962-CU-OE-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Katherine A. Bacal, Judge. Affirmed.

Quarles & Brady, E. Joseph Connaughton, Evan A. Peña, and Kelly E. 

Kagan for Defendant and Appellant.

Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. 

Blanchard, III for Plaintiff and Respondent.

I

INTRODUCTION

National Steel and Shipbuilding Company (NASSCO) appeals an order 

denying its petition to compel arbitration of a wage and hour complaint 
2

brought by its alleged former employee Archie Shakespeare. The trial court 

denied the petition on grounds that NASSCO failed to establish the existence 

of an arbitration agreement between NASSCO and Shakespeare. We affirm.

II

BACKGROUND

Shakespeare filed the operative complaint against his putative former 

employers, NASSCO and Ameri-Force Craft Services, Inc. (Ameri-Force). In 

relevant part, he alleged NASSCO violated wage and overtime laws by failing 

to pay its non-exempt employees for time spent going through workplace 

security checkpoints, donning and doffing personal protective equipment, 

having their temperatures checked, and traveling between security 

checkpoints and their workplace sites. Further, he alleged NASSCO failed to 

pay wages due on termination, violated wage statement laws, and violated 

the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.). He filed his 

claims on an individual basis, on behalf of a putative class of non-exempt 

NASSCO employees, and on a representative basis under the Private 

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). 

NASSCO petitioned to compel arbitration of the case. It argued that it 

entered into collective bargaining agreements (CBAs) with two labor unions 

that represent most of the non-exempt employees Shakespeare seeks to 

represent on a class or representative basis. The CBAs govern the terms of 

employment for unionized employees on matters such as hours, wages, and

overtime. All of the CBAs provide that disputes concerning the 

interpretation or application of the CBAs may be referred to arbitration if the 

disputes are not resolved through an internal grievance procedure. Some of 

the CBAs state that NASSCO and its unionized employees must arbitrate
3

any “claims arising out of employment,” including wage and hour claims, on 

an individual basis. 

Shakespeare opposed the petition to compel arbitration. He argued 

that NASSCO failed to establish that he accepted, or was otherwise bound 

by, an arbitration agreement. In particular, he claimed he never signed, and 

was not subject to, the CBAs executed by NASSCO and the labor unions. 

NASSCO filed a reply in support of its arbitration petition. It did not 

argue that Shakespeare accepted, or was otherwise bound by, its CBAs. On 

the contrary, it claimed Shakespeare was never a NASSCO employee and, 

therefore, he was never a member of the labor unions that executed the CBAs 

on behalf of their members. According to NASSCO, Shakespeare was an 

employee of codefendant Ameri-Force, a staffing agency that purportedly

dispatched Shakespeare to work for NASSCO on a temporary basis. 

The trial court denied the petition to compel arbitration. It found 

NASSCO did not “put forth any evidence to show that [Shakespeare] entered 

any agreement to arbitrate his dispute. Nor did NASSCO show in its moving 

papers that some other theory or doctrine warrant[ed] concluding that any of 

the arbitration provisions in the CBAs would apply to [Shakespeare], an 

alleged non-represented employee.”

NASSCO appeals the order denying its petition to compel arbitration.1

III

DISCUSSION

“ ‘ “[T]he threshold question presented by a petition to compel 

arbitration is whether there is an agreement to arbitrate.” ’ [Citation.] While 

both the Federal Arbitration Act (9 U.S.C. § 1 et seq.; the FAA) and 

1 The trial court also denied a request from NASSCO to strike the class 

and representative allegations from Shakespeare’s complaint. NASSCO does 

not challenge this ruling in this appeal. 
4

California law favor arbitration, a party is not required to arbitrate his or her 

claims absent consent.” (Costa v. Road Runner Sports, Inc. (2022) 84 

Cal.App.5th 224, 233; see Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 

233, 252 [“[B]ecause ‘[a]rbitration is strictly “a matter of consent” ’ [citations], 

‘ “a party cannot be required to submit to an arbitration any dispute which he 

has not agreed so to submit” ’ ”].) “ ‘ “The party seeking to compel arbitration 

bears the burden of proving the existence of a valid arbitration agreement.” ’ ” 

(Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 

811.)

“ ‘[W]e apply general California contract law to determine whether the 

parties formed a valid agreement to arbitrate their dispute.’ ” (Ford Motor 

Warranty Cases (2023) 89 Cal.App.5th 1324, 1331.) But, where the formation 

or revocability of an arbitration agreement are not at issue—and the 

pertinent question is who may or must submit to arbitration pursuant to an 

otherwise valid arbitration agreement—federal law applies. (Metalclad Corp. 

v. Ventana Environmental Organizational Partnership (2003) 109 

Cal.App.4th 1705, 1712–1713 (Metalclad); see also International Paper Co. v. 

Schwabedissen Maschinen & Anlagen GMBH (4th Cir. 2000) 206 F.3d 411, 

416–417, fn. 4 (Schwabedissen) [“Because the determination of whether ... a 

nonsignatory, is bound by the [arbitration agreement] presents no state law 

question of contract formation or validity, we look to the ‘federal substantive 

law of arbitrability’ to resolve this question.”].) 

“ ‘Because arbitration is a matter of contract, generally “ ‘one must be a 

party to an arbitration agreement to be bound by it or invoke it.’ ” ’ 

[Citation.] ‘However, both California and federal courts have recognized 

limited exceptions to this rule, allowing nonsignatories to an agreement 

containing an arbitration clause to compel arbitration of, or be compelled to 
5

arbitrate, a dispute arising within the scope of that agreement.’ ” (People v. 

Maplebear, Inc. (2022) 81 Cal.App.5th 923, 931, italics added; see also Jones 

v. Jacobson (2011) 195 Cal.App.4th 1, 17 (Jones) [“with limited exceptions 

only parties to an arbitration agreement can enforce it or be required to 

arbitrate”].) “ ‘ “ ‘As one authority has stated, there are six theories by which 

a nonsignatory may be bound to arbitrate: “(a) incorporation by reference;

(b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and 

(f) third-party beneficiary.” ’ ” ’ ” (Maplebear, at pp. 931–932.)

The parties agree Shakespeare did not personally execute the CBAs

containing the arbitration provisions NASSCO seeks to enforce. Further, 

they agree Shakespeare was not a unionized NASSCO employee represented 

by the labor unions that executed the CBAs. Thus, it is uncontested 

Shakespeare never consented to the arbitration provisions in the CBAs and 

no other entity purported to do so on his behalf or for his benefit.

Nonetheless, NASSCO argues Shakespeare must submit to arbitration

based on an equitable estoppel theory. NASSCO argues Shakespeare is 

estopped from asserting that the CBAs cannot be enforced against him

because he has accepted the benefits of the CBAs. In particular, NASSCO 

asserts he has benefitted from the CBAs because, as part of the current 

lawsuit, he has filed potentially lucrative putative class and representative 

claims on behalf of unionized employees who are subject to the CBAs. 

Alternatively, NASSCO argues he benefitted by working at a NASSCO 

worksite, a “largely unionized job site” governed by the CBAs. We reject 

NASSCO’s estoppel argument.

As an initial matter, NASSCO forfeited its estoppel argument by failing 

to present it to the trial court for its consideration in the first instance. “ ‘[I]t 

is fundamental that a reviewing court will ordinarily not consider claims 
6

made for the first time on appeal which could have been but were not 

presented to the trial court.’ ” (Perez v. Grajales (2008) 169 Cal.App.4th 580, 

591; see, e.g., Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 

Cal.App.4th 1, 9 [appellant forfeited claim that nonsignatory could not 

enforce arbitration agreement]; Jones, supra, 195 Cal.App.4th at p. 19, fn. 12 

[appellants forfeited claim they were entitled to enforce arbitration 

agreement under agency theory by not presenting it to trial court].) 

NASSCO urges us to exercise our discretion and excuse its failure to 

present its estoppel argument below. “[T]he appellate court’s discretion to 

excuse forfeiture should be exercised rarely and only in cases presenting an 

important legal issue.” (In re Marriage of Elali & Marchoud (2022) 79 

Cal.App.5th 668, 682.) This case is not the rare case in which it is 

appropriate for us to excuse forfeiture. NASSCO’s claim—that Shakespeare 

is estopped from opposing enforcement of the arbitration provisions in the 

CBAs because he has benefitted from the CBAs—is not a pure legal issue, but 

rather an argument that requires consideration of factual issues including 

the extent to which Shakespeare has in fact benefitted from the CBAs. (See 

Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [“The existence of an 

estoppel is generally a question of fact for the trial court whose determination 

is conclusive on appeal unless the opposite conclusion is the only one that can 

be reasonably drawn from the evidence.”].) Moreover, the appeal does not 

present an important legal issue warranting our exercise of discretion.

Forfeiture aside, NASSCO’s estoppel argument is unconvincing on the 

merits. To support its estoppel argument, NASSCO invokes legal standards 

discussed in federal decisional law, primarily Schwabedissen, supra, 206 F.3d 

411. In that case, a lower federal court determined a nonsignatory to an 

arbitration agreement may be estopped from refusing to comply with the
7

arbitration agreement when the nonsignatory has “ ‘receive[d] a “direct 

benefit” from [the] contract containing [the] arbitration clause.’ ” (Id. at 

p. 418; ibid. [“In the arbitration context, the [estoppel] doctrine recognizes 

that a party may be estopped from asserting that the lack of his signature on 

a written contract precludes enforcement of the contract’s arbitration clause 

when he has consistently maintained that other provisions of the same 

contract should be enforced to benefit him.”]; see also Metalclad, supra, 109 

Cal.App.4th at p. 1713 [“a party who has not signed a contract containing an 

arbitration clause may nonetheless be compelled to arbitrate when he seeks 

enforcement of other provisions of the same contract that benefit him”].)

According to NASSCO, Shakespeare is benefitting from the CBAs—and 

is estopped from resisting enforcement of their arbitration provisions—

because he is pursuing potentially profitable class and representative causes 

of action on behalf of employees whose terms of employment are governed by 

the CBAs. But, as Shakespeare correctly notes, his causes of action do not 

seek to secure benefits or effectuate rights guaranteed by the CBAs. Rather, 

they allege extra-contractual violations of state wage and hour laws. Thus, to 

the extent Shakespeare might obtain any benefit from his putative class and 

representative causes of action, it is state law that would supply the benefit—

not the CBAs. (See Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 

1131 [nonsignatory could not be compelled into arbitration under estoppel 

theory, in part, because nonsignatory sued signatory for “noncontractual 

injury,” not to recover benefits under contract with arbitration provisions]; 

see also InterGen N.V. v. Grina (1st Cir. 2003) 344 F.3d 134, 145–146

[nonsignatory could not be compelled to arbitration because it did not seek

damages under contract containing arbitration provisions; rather, it sought 

recovery for signatory’s “extra-contractual assurances”].) 
8

In the alternative, NASSCO argues Shakespeare benefitted from the 

CBAs because he purportedly worked “at a job site where [the] CBAs set the 

terms of employment for almost everyone around him.” Perhaps because 

NASSCO did not present its estoppel argument to the trial court in the first 

instance, there is nothing in the appellate record to support NASSCO’s 

unfounded claims about where Shakespeare worked, with whom he worked, 

and the CBAs that might have governed those particular coworkers’ terms of 

employment. For this reason alone, the argument fails. But even if the 

appellate record supported NASSCO’s argument, we would reject it. “ ‘[Case 

law] consistently requires a direct benefit under the contract containing an 

arbitration clause before a reluctant party can be forced into arbitration.’ ” 

(Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 

Cal.App.4th 1061, 1070–1071.) Here, the claimed benefit—working in 

proximity to employees who benefitted from the CBAs—is far too attenuated

to compel a nonsignatory like Shakespeare into arbitration.

We offer a brief observation in closing. Throughout its appellate briefs, 

NASSCO vigorously claims Shakespeare should not “be allowed” to pursue 

causes of action on behalf of NASSCO employees generally, let alone those 

subject to CBAs, because he was never a NASSCO employee. This argument 

potentially might be relevant when the trial court decides whether class 

certification is warranted for Shakespeare’s causes of action—at which point 

the court must decide, among other things, whether a well-defined 

community of interest exists. (Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 

955, 968.) It may also be pertinent to whether Shakespeare is an “aggrieved 

employee” with standing to bring a PAGA cause of action on behalf of himself 

and “other current or former employees.” (Lab. Code, § 2699, subd. (a).) But 

it is plainly irrelevant to the current proceeding, which concerns the 
9

straightforward question of whether a signatory to an arbitration agreement 

(NASSCO) may require a nonsignatory to the agreement (Shakespeare) to 

submit his claims to arbitration. Under the facts presented here, the answer 

to that question is no.2

IV

DISPOSITION

The order denying the petition to compel arbitration is affirmed. 

Respondent is entitled to his appellate costs.

McCONNELL, P. J.

WE CONCUR:

IRION, J.

DO, J.

2 Shakespeare filed a motion for monetary sanctions against NASSCO 

and/or its legal counsel arguing that the present appeal is frivolous. (See In 

re Marriage of Flaherty (1982) 31 Cal.3d 637, 649–651.) Although we side 

with Shakespeare on the merits, we conclude the appeal is not so totally and 

completely devoid of merit that it constitutes a frivolous appeal. Accordingly, 

we deny the sanctions motion.