Filed 6/27/13 Avery v. Integrated Healthcare Holdings CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ALEXANDRA AVERY et al., Plaintiffs and Respondents,

v.

INTEGRATED HEALTHCARE HOLDINGS, INC., et al., Defendants and Appellants. G046202
(Super. Ct . No. 30-2009-00274060)

O P I N I O N

Appeal from an order of the Superi or Court of Orange County, Nancy Wieben Stock, Ju dge. Affirmed. Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Derek R. Havel and Daniel J. McQueen for Defendants and Appellants. Cotchett, Pitre & McCarthy, Niall P. Mc Carthy, Justin T. Berger, Eric J. Buescher; Coughlin Law Firm, Frank J. C oughlin, Kim-Thao T. Le; Jerry K. Cimmet;2 Law Offices of John M. Kelson, John M. Kelson; and Gerald M. Werksman for Plaintiffs and Respondents.
* * * Defendants and appellants appeal from an order denying their motions to compel plaintiffs and respondents to individua lly arbitrate the wage and hour claims they allege in this class action. 1 Integrated relies on an arb itration policy contained in an employee handbook issu ed by Tenet Healthcare Corpora tion (Tenet), the previous owner of the four hospitals where Plaintiffs work , and a revised arbitration policy Integrated issued as part of a new employee handbook. In tegrated contends Plaintiffs agreed to the arbitration policy by signing various docu ments acknowledging and agreeing to the policy.
We affirm the trial court’s decision denying Integrated’s motions because Integrated failed to establish Plaintiffs ag reed to the specific arbitration agreement Integrated submitted to the trial court. Initiall y, we conclude Integrated is limited to the arbitration policy contained in the employee handbook issued by th e prior owner of the hospitals because Integrated issued the revised employee ha ndbook and arbitration policy after Plaintiffs’ claims accrued and the origin al class action complaint was filed.
Substantial evidence in th e record establishes one Plaintiff did not sign any document acknowledging or agreeing to the orig inal arbitration policy. Moreover, she did not impliedly agree to that policy by con tinuing to work at the hospitals because she
did not receive notice of its existence. As for the other seven Plaintiffs, Integrated

1 Defendants and appellants are Inte grated Healthcare Holdings, Inc., WMC-SA, Inc., Chapman Medical Center, In c., Coastal Communities Hospital, and WMC-A, Inc. We will refer to them collectively as Integrated. Plaintiffs and respondents are (1) Maileen Aguilar, (2) Alexandra Avery, (3) Gwendolyn B. Cade, (4) Ru th Calderon, (5) Ja imie Ann Gebler, (6 ) Denise Nolfo, (7) Julie Ross, and (8) Minoosh Zarrinnegar. We will refer to them i ndividually by their last names and collectively as Plaintiffs.3 submitted a confusi ng patchwork of acknowle dgments and other forms these Plaintiffs signed, but none of these doc uments refer to the specific employee handbook Integrated filed as the source of the arbitration policy. To the contrary, the documents Plaintiffs signed either refer to an entirely different doc ument as the source of the arbitration policy or fail to meet the legal standards for incorp orating by reference an arbitration policy or
other document. Without suffi cient evidence of the actual arbitration policy to which Plaintiffs agreed when they signed the ac knowledgments and other documents, we may not enforce the policy against Plaintiffs.

I

F ACTS AND P ROCEDURAL H ISTORY In March 2005, Integrated acquired the following four hospitals from Tenet: (1) Western Medical Center – Santa Ana (Western Med Santa Ana); (2) Chapman Medical Center (Chapman); (3) Western Medical Center – Anaheim (Western Med Anaheim); and (4) Coastal Communities Hospital (Coastal; collectively Hospitals). Calderon, Gebler, Ross, and Zarrinnegar each worked at one of these Hospitals both before and after Integrated acquired them. Aguilar, Avery, Cade, and Nolfo each worked at one of these Hospitals only after Integrat ed acquired them. Avery worked at Western Med Santa Ana; Aguilar, Nolfo, and Ross wo rked at Chapman; Cade, Calderon, and Zarrinnegar worked at Coastal; and Gebler worked at Western Med Anaheim. All
Plaintiffs still work at one of these Ho spitals except Aguilar and Avery. Before or during their employment at the Hospitals, each Plaintiff except Cade signed at least two of the following documents agreeing to arbitrate claims relating to their employment under an alternative dispute resolution process called the “Fair Treatment Process”: (1) the “Employee Ac knowledgment Form”; (2) the “Application4 for Employment”; and (3) the so-calle d “‘New Hire’” or “Transition Letter.’” 2 According to Integrated, “[t]he details of th e arbitration policy (called the Fair Treatment Process, or FTP)” were set forth in Te net’s employee handbook, which Integrated adopted as its own when it acquired the Hosp itals (Tenet Employee Handbook). Cade did not sign any of these documents or any other document referring to the Fair
Treatment Process or arbitration. Avery, Calderon, Gebler, Ross, and Zarrinnegar each signed the Employee Acknowledgment Form, which stated “I acknowl edge that I have received a copy of the Tenet Employee Handbook and Standards of C onduct and that I understand that they contain important information about the comp any’s general personnel policies and about my privileges and obligations as an employee . . . . [¶] . . . [¶] In addition, I acknowledge that I have received a copy of th e Tenet Fair Treatment Process brochure. I hereby voluntarily agree to use the Company’ s Fair Treatment Process and to submit to final and binding arbitration any and all claims and disputes th at are related in any way to my employment or the termination of my empl oyment with Tenet. I understand that final and binding arbitration will be the sole a nd exclusive remedy for any such claim or dispute against Tenet or its parent, subsidia ry or affiliated companies and entities, and each of its and/or their employees, officers, directors or agents, and that, by agreeing to use arbitration to resolve my dispute, both the Company and I agree to forego any right we each may have had to a jury trial on issues covered by the Fair Treatment
Process. . . .”

2 We quote the relevant provisions of these documents in the following paragraphs. We acknowledge some Plaintiffs signed slightly different versions of these documents. The differences between the vers ions are minor and in no way affect our analysis. For example, the Applications for Employment signed before Integrated acquired the Hospitals refer to “Tenet” while the ones signed after the acquisition refer to “IHHI.” No one disputes Integrated’s sta nding to enforce the documents referring to Tenet.5 The Employee Acknowledgment Form fu rther stated (1) the arbitration
would be conducted under th e Federal Arbitration Act a nd the American Arbitration Association’s procedural rules; (2) the “C ompany” agreed to submit any dispute it had with the employee to final and binding ar bitration; and (3) the maximum amount the employee would be responsible to pay toward the arbitrator’s fees and administrative

costs. Aguilar, Avery, Calderon, Nolfo, and Ross each signed the Application for Employment, which included the following statement immedi ately above the signature line: “I understand that any and all disputes regarding my employment with Tenet, including any disputes relating to the termination of my em ployment, are subject to the Tenet Fair Treatment Process, which includes final and binding arbitration, and I also understand and agree, as a condition of employment and continued employment, to submit any such disputes for re solution under that process, and I further agree to abide by and accept the decision of the Arbitration panel as the final binding decision and resolution of any disput es I may have.” Approximately two months after Integr ated acquired the Hospitals, it sent employees the Transition Letter explaining th eir employment with Tenet would formally end on a specified date in Ma y 2005, but Integrated “is offering you employment on the terms set forth below. [¶] . . . [Integrat ed] and you agree to u tilize the existing Open Door Policy and Fair Treatment Process, as hereby amended to subs titute [Integrated] for Tenet, to resolve any and all disputes related to your future employment. . . . [¶] In order to confirm your acceptance of employment with [Integrated], we request that you sign this letter in the spaces provided below and return an execute d original of this letter to the Human Resources Department . . . . In any ev ent, your commencement of work after [the date specified] shall constitute your acceptance of the terms and conditions set forth above.” Aguilar, Calderon, Gebler, Nolfo, an d Zarrinnegar each signed and returned this6 letter. Integrated presented no evidence showing Avery, Ross, or Cade received this letter or that Integrated attempted to send the letter to thes e three Plaintiffs. In June 2009, Avery filed a class ac tion complaint against Integrated on behalf of all employees at the Hospitals w ho worked 12-hour shifts without receiving proper overtime wages. Four months later, Integrated unilaterally issued a new version of the Tenet Employee Handbook (Integrated Employee Handbook) without notifying Plaintiffs or any other employees. The Inte grated Employee Handbook renamed the Fair Treatment Process the “Alternative Dispute Resolution Process” a nd added a provision waiving the employee’s right to join his or he r claims with other employees’ claims or bring a class or representative action against Integrated. 3 Integrated contends it made no other significant changes to the Fair Treatment Process. In January 2010, Aguilar, Nolfo, a nd Ross filed a separate class action complaint against Integrated on behalf of all employees at the Hospitals who worked
12-hour shifts without receivi ng proper overtime wages. The parties thereafter agreed to consolidate the two actions and Aguilar, Aver y, Nolfo, and Ross filed a consolidated complaint setting forth their clai ms in a single pleading. In June 2010, Plaintiffs filed a first amended consolidated class action comp laint adding Cade, Calderon, Gebler, and Zarrinnegar as plaintiffs. This amended comp laint alleged the following claims against Integrated: (1) unfair competition; (2) fa ilure to pay appropriate overtime wages; (3) failure to provide meal and rest periods; (4) failure to pay wages when due; and (5) failure to provide accura te wage statements. In July 2010, Integrat ed filed eight motions seeking to compel each Plaintiff to separately arbitrate their clai ms on an individual basis based on the Fair

3 Specifically, this provision stated, “[B]oth you and the facility forego and waive any right to join or cons olidate claims in arbitration w ith others or to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity, unless such arbitration pr ocedures are agreed to by all parties to the arbitration.”7 Treatment Process described in the Tene t Employee Handbook and the Alternative Dispute Resolution Process set forth in the Integrated Employee Handbook. Plaintiffs opposed the motions on numerous grounds, in cluding (1) the Fair Treatment Process and Alternative Dispute Resolution Process excluded Plaintiffs’ non waivable statutory claims from their terms; (2) the class arbitrati on waiver was invalid and unenforceable; (3) Integrated waived its right to compel arbitration; and (4) the Fair Treatment Process and Alternative Dispute Resolutio n Process were unconscionable. Plaintiffs also pointed out the employee handbook and Fair Treatmen t Process Integrated submitted with the motions applied to Western Med Santa Ana onl y and none of Plaintiffs worked at that Hospital except Avery. Finally, Cade argued she never signed any document acknowledging or agreeing to the Fair Treatme nt Process, Alternative Dispute Resolution Process, or any other arbitration policy. The trial court denied all motions, findi ng Integrated “failed to meet [its] burden to show that any of the Plaintiffs are subject to an enforceable arbitration agreement.” The court expl ained Integrated failed to present suffici ent evidence establishing an enforceable arbitration ag reement between the parties and the Fair Treatment Process and Alternative Dispute Re solution Process Integrated presented were nonetheless unconscionable. Integrated timely appealed.

II

D ISCUSSION

A. Relevant Legal Principles Re garding Compelling Arbitration Both the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) and the Federal Arbitration Act (F AA; 9 U.S.C. § 1 et seq.) re cognize “‘“arbitration as a speedy and relatively inexpensive means of dispute resolution”’ and are intended ‘“to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribuna l of their own choosing.”’ [Citation.]”8 ( St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1204; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___, __ _; 131 S.Ct. 1740, 1745 ( AT&T Mobility ).) The fundamental policy underlying both Acts “is to ensure that arbitration agreements will be enforced in accordance w ith their terms .” ( Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 836 , fn. 10, original italics; AT&T Mobility , at p. 1748.) Arbitration is therefore a matter of contract. ( Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App. 4th 1511, 1517-1518 ( Sparks ).) The “‘“‘“. . . policy favoring arbitration cannot displace the necessi ty for a voluntary
agreement to arbitrate.”’ [Citation.] ‘Although “[ t]he law favors contracts for arbitration of disputes between parties” [citation], “‘there is no polic y compelling persons to accept
arbitration of controversies which they have not agreed to arbitr ate . . . .’” [Citations.]’” [Citation.] “Absent a clear agr eement to submit disputes to arbitration, courts will not infer that the right to a jury trial has b een waived.” [Citation.]’ [Citation.]” ( Id . at p. 1518, original italics.)
Code of Civil Procedure section 1281 .2 requires a trial court to grant a petition to compel arbitration “if [the court] determines that an agreement to arbitrate the controversy exists.” (Code Ci v. Proc., § 1281.2.) Accordingly, “‘when presented with a petition to compel arbitration the trial court’s fi rst task is to determ ine whether the parties have in fact agreed to arbitrate th e dispute. . . .’ [Citation.]” ( Gorlach v. Sports Club Co. (2012) 209 Cal.App. 4th 1497, 1505 ( Gorlach ); see also Sparks , supra , 207 Cal.App.4th at p. 1517.) “A party seeking to compel arbitration has the burden of proving the existence of a valid agreement to arbitrate. [Citations.] Once that burden is satisfied, the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition. [Citations.]” ( Sparks , at p. 1518.) Although the FAA preempts any state law that stands as an obstacle to its objective of enforcing arbitration agreements according to their terms, such as a rule9 requiring classwide arbitration (see AT&T Mobility , supra , 131 S.Ct. at p. 1748), we apply general California contract law to de termine whether the parties formed a valid agreement to arbitrate their dispute ( Sparks , supra , 207 Cal.App.4th at p. 1518; see also
Gorlach , supra , 209 Cal.App.4th at p. 1505). “Gener al 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 contracting. [Citations.] . . .’ [Citation.]” ( Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170 ( Mitri ).) Contract law also requires the parties agree to the same thing in the same sense. (C iv. Code, §§ 1550, 1565, 1580; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811 ( Weddington ).)
“There is no uniform standard of re view for evaluating an order denying a motion to compel arbitration. [Citation.] If the court’s order is based on a decision of fact, then we adopt a substan tial evidence standard. [Citations .] Alternatively, if the court’s denial rests solely on a decision of la w, then a de novo standard of review is employed. [Citations.]” ( Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) Interpreting a written document to determine whether it is an enforceable arbitration agr eement is a question of law subj ect to de novo review when the parties do not offer conflic ting extrinsic eviden ce regarding the document’s meaning. ( 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App. 4th 1199, 1212 ( 24 Hour

Fitness ).) Here, both the substantial eviden ce and de novo st andards apply. Integrated’s motion to compel Cade to arbitrate her claims is governed by
the substantial evidence sta ndard because the motion tu rned on conflicting evidence regarding whether Cade receive d and agreed to Integrated’s arbitration policy. ( Craig v. Brown & Root, Inc. (2000) 84 Cal.App. 4th 416, 421-422 ( Craig ); see also Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701.) Integrated’s motions to compel
the other seven Plaintiffs to arbitrate their claims are governed by the de novo standard
because the issue turn ed on whether the documentation In tegrated submitted set forth an enforceable arbitration provision. ( Mitri , supra , 157 Cal.App.4th at pp. 1169-1170;10 24 Hour Fitness , supra , 66 Cal.App.4th at p. 1212.) The parties did not submit conflicting extrinsic evidence regard ing the documentation’s meaning.

B. Integrated May Not Apply the Alterna tive Dispute Resolution Process in the 2009 Employee Handbook to Plaintiffs’ Claims Integrated sought to compel Plaintiffs to individually arbitrate their claims based on two arbitration agreements: (1) the Fair Treatment Process in the Tenet Employee Handbook, and (2) the Alterna tive Dispute Resolution Process in the Integrated Employee Handbook. We conclude Integrated is lim ited to the Fair Treatment Process because (1) it issued the Integrated Employee Ha ndbook and its Alternative Dispute Resolution Process after Plaintiffs’ claims accrued, and (2) it failed to notify Plaintiffs or any other employees abou t the Integrated Employee Handbook. Four months after Avery filed her initia l class action complaint, Integrated unilaterally modified the Fair Treatment Process in the Tenet Employee Handbook by renaming it the Alternative Dispute Resolutio n Process and adding a class arbitration waiver. Integrated modified the Fair Tr eatment Process based on a provision that authorized the employer to “change or mo dify the FTP procedur es from time-to-time
without advance notice and with out the consent of employees.” Integrated posted the Integrated Employee Handbook containing the Alternative Dispute Resolution Process on its intranet page, but it did not provide employees with a copy of the new handbook, instruct employees to review the new handb ook on the intranet page, or even notify employees of the new handbook’s existence. An arbitration agreement between an employer and an employee may reserve to the employer the unilateral right to modify the agreement. ( 24 Hour Fitness , supra , 66 Cal.App.4th at pp. 1214-1215.) But the covenant of good faith and fair dealing implied in every contract requi res the employer to exercise that right fairly and in good faith so as not to deprive th e employee of his or her reas onable expectations under the agreement. ( Ibid .; see also Digerati Holdings, LLC v. Young Money Entertainment, LLC11 (2011) 194 Cal.App.4th 873, 885 [“Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the c ontract. [Citations.] The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises”].) Accordingly, an employer may not make unilateral changes to an arbitration agreement that apply retroactively to “accrue d or known” claims because doing so would unreasonably interfere with th e employee’s expectations regarding how the agreement applied to those claims. ( Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1465 ( Peleg ).) Similarly, the employer must gi ve the employee reasonable notice regarding changes the employer makes so th e employee is aware of his or her rights under the agreement. ( Serpa v. California Sure ty Investigations, Inc. (2013) 215 Cal.App.4th 695, 706-708 ( Serpa ).) Both of these rules prevent Integrated from applying the Alternative Dispute Reso lution Process to Plaintiffs’ claims. Integrated contends these rules ex empt only Avery’s claims from the Alternative Dispute Resolution Process because all other Plai ntiffs filed their judicial complaints and joined this action after In tegrated issued the Integrated Employee Handbook. Integrated is mi staken. The implied covenant prevents Integrated from applying the Alternative Disp ute Resolution Process to all claims that accrued before Integrated issued the new ha ndbook. The critical point in time is when the claims accrued, not when the employee filed his or her judicial complaint. ( Peleg , supra , 204 Cal.App.4th at p. 1465.) All Plaintiffs allege Integrated engaged in the conduct giving rise to their claims before it issued the Alternative Dispute Resolution Process. Consequently, the Alternative Dispute Re solution Process does not apply because Plaintiffs’ claims had accrued by the time Integrated issued the change. 4

4 Integrated’s argument also ignores that the initial complaint Avery filed before Integrated issued th e Alternative Dispute Resolution Process was a class action complaint filed on behalf of employees at all f our Hospitals. Accordingly, the claims of12 Integrated also argues we should apply the Altern ative Dispute Resolution
Process to Plaintiffs’ claims because its cl ass arbitration waiver simply made explicit what the United States Supreme Court’s decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662, ___ [130 S. Ct. 1758, 1773] already required, that is, the parties to an arb itration agreement must arbitrate their claims on an individual basis unless they expressly agree to classwid e arbitration. This argument misses the point. Regardless of what changes an empl oyer makes to an arbitration agreement, it may not apply those changes to existing clai ms or without giving employees reasonable notice of the changes. Whether the law alrea dy requires the changes Integrated sought to impose is irrelevant to whether it c ould apply them to existing claims. 5 Finally, Integrated argues we should sever the class arbitration waiver provision and apply the remainder of the A lternative Dispute Resolution Process if we find Integrated improperly added the waive r. This argument also misses the point. Plaintiffs’ claims against Integrated are governed by the arbitr ation agreement that
existed at the time the claims accrued. Inte grated, however, relies on a revised agreement
it issued after the claims accrued . Simply put, the revised ag reement is irrelevant because Integrated may not apply it retroactively to claims that existed before the revision was imposed. (See Peleg , supra , 204 Cal.App.4th at p. 1465.)

all Plaintiffs’ were on file before Integrat ed issued the Alternative Dispute Resolution Process. Applying that process and its class ar bitration waiver to claims of all Plaintiffs except Avery would allow Integr ated to unilaterally limit an existing action by modifying its employee handbook. The implied covenant of good faith and fair dealing prevents Integrated from doing so. ( Peleg , supra , 204 Cal.App.4th at p. 1465.)

5 Of course, the inapplicability of th e Alternative Dispute Resolution Process and its class arbitration waiver to Plainti ffs’ claims do not prevent Integrated from arguing the Stolt-Nielsen decision prevents classwide arb itration of Plaintiffs’ claims. We do not address what the Stolt-Nielsen case requires because we affirm the trial court’s ruling based on Integrated’s failure to esta blish an enforceable arbitration agreement existed.13 Accordingly, Integrated’s motions to compel Plaintiffs to arbitrate their
claims must succeed or fail base d solely on the Fair Treatm ent Process set forth in the Tenet Employee Handbook.

C. Cade Never Agreed to Arbitration Integrated concedes Cade did not sign an arbitration agreement, but nonetheless argues Cade must arbitrate her claims because she had an implied-in-fact arbitration agreement that applied to all clai ms regarding her employment. According to Integrated, the Tenet Employee Handbook requi red all employees to arbitrate any claims against Integrated as a condition of their employment, and theref ore Cade implicitly agreed to arbitration by contin uing to work for Integrated after she received the Tenet Employee Handbook. We disagr ee because substantial evidence supports the trial court’s finding Cade did not receive the Tenet Employee Handbook. “California law permits employers to implement policies that may become unilateral implied-in-fact contracts when employees accept them by continuing their employment.” ( Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 11; see also Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 620 ( Schachter ) [“An ‘employee who continues in the employ of the employer after the employe r has given notice of changed terms or conditions of employment has accepted the changed terms a nd conditions’”].) A unilateral, implied-in-fact arbitration agre ement may be enforced against an employee to require the employee to arbitrate all claims against his or her employer. ( Craig , supra , 84 Cal.App.4th at p. 420.)

In Craig , the employee worked for the empl oyer for several years before the employer established a dispute resolu tion policy that required all employees to arbitrate disputes regarding their employmen t. The employer established the policy and made it a condition of employment by send ing its employees a memorandum and brochure emphasizing all future disputes with the employer would be resolved through14 binding arbitration and explaining the arbitr ation procedures. Four years later, the employee sued the employer claiming it wro ngfully terminated her employment. The employer petitioned the court to compel arb itration and presented evidence showing it
twice mailed the memorandum and brochure establishing the arbitration policy to the employee at her home address. The employe e opposed the petition, arguing she never agreed to the arbitration policy and neve r received the memorandum and brochure establishing the policy. The trial court gran ted the petition based on its factual finding the employee continued working for the em ployer after receiving the memorandum and brochure. ( Craig , supra , 84 Cal.App.4th at pp. 419-420.) The Court of Appeal affirmed. ( Id . at p. 423.)
The Craig court explained general contra ct law principles governed whether the parties entered into a bindin g arbitration agreement and therefore the employee’s acceptance of the arbitration po licy “may be express [citations] or implied-in-fact where, as here, the empl oyee’s continued employment constitutes her acceptance of an agreement pr oposed by her employer.” ( Craig , supra , 84 Cal.App.4th at p. 420.) Because substantial evidence supported the trial cour t’s factual finding the employee continued working for the employer af ter receiving the arbitration policy, the appellate court concluded the employee and em ployer had an implied-in-fact arbitration agreement. ( Id . at pp. 421-422.)
Unlike Craig , Integrated failed to present an y evidence showing it sent or otherwise provided Cade a copy of the Te net Employee Handbook containing the Fair Treatment Process. As stated above, Integr ated concedes Cade did not sign an Employee Acknowledgment Form, Application for Em ployment, Transition Letter, or any other document acknowledging she received the Tenet Employee Handbook or otherwise agreeing to the Fair Treatment Process. 6 The only documents Integrated presented

6 After Cade filed her trial court opposition stating sh e never signed an Application for Employment or received a Tenet Employee Handbook, her supervisor15 specifically relating to Cade are (1) a “Gen eral Orientation” form Cade signed listing 14 broad topics on which she “r eceived information and inst ruction” during her employee orientation when she started working at Coas tal, and (2) an unsign ed “Personnel File Checklist” listing 35 documents. One of the topics listed on the General Orientation form
is “Human Resources” and one of the ei ght subtopics under Human Resources is “employee handbook.” “Employe e Handbook” also is one of the documents listed on the
Personnel File Checklist. Integrated, however, failed to provide testimony from anyone who was present during Cade’s orientati on, who gave or sent Cade an employee handbook, or who could explain how the orienta tion was conducted or what these documents mean. The only testimony Integrat ed submitted regarding these documents is a declaration from its current Vice President of Human Resources, who simply declared these two documents were found in Cade’s personnel file. Neither document states Cade was actually provided a Tenet Employee Handbook and neither mentions arbitration or any other form of dispute resolution. Moreover, Cade submitted a declarati on stating she does not recall ever receiving an employee handbook and does not believe she rece ived one because she kept her orientation documents and they do not in clude a handbook. Cade also declares she never discussed an arbitration policy or agreement with anyon e from Integrated’s management. The foregoing constitutes substantial ev idence supporting the trial court’s finding Integrated failed to meet its evidentiary burd en to establish Cade received a Tenet Employee Handbook containing the Fa ir Treatment Process. (See Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282-1283 [substantial ev idence “is ev idence of

approached her during one of her shifts and asked her to sign an Application for Employment containing an arbitration clause. Cade declined.16 ponderable legal significance that is reasonabl e, credible and of so lid value, supporting the challenged findings of th e trier of fact”].) Without evidence establishing Cade received (or at least was sent) a Tenet Employee Handbook making the Fair Treatment Process a condition of her employment, there is no basis to conclude an implied-in-fact arbitration agreement existed based on her continued employment. (See Craig , supra , 84 Cal.App.4th at pp. 420-422.) Integrated contends we need not de cide whether the evidence establishes Cade agreed to arbitrate her claims becau se she conceded she did. Specifically, Integrated contends the decl aration Cade filed to oppose its motion stated she “‘had no choice of whether to accept any arbitration provision.’” This statement is taken out of context and does not support Integrated’s cont ention. Cade never stated she accepted an arbitration agreement and, in fact, empha sized she did not sign her Application for Employment containing an arbitration provision. Cade simply stat ed Integrated never discussed arbitration with her when she app lied for her position an d Integrated did not give her a choice of accepting or rejecting any arbitration provision. None of these
statements amount to an admission that Ca de agreed to arbitrate her claims. Integrated also contends an implied- in-fact arbitration agreement does not require the employee receive notice of th e employer’s policy making arbitration a condition of employment. Integrated is mist aken. Case law clearly requires an employee receive notice of a condition the employer pl aces on the employee’s employment before the employee can impliedly accept that conditi on by beginning or continuing to work for the employer. ( Schachter , supra , 47 Cal.4th at p. 620; c.f. Serpa , supra , 215 Cal.App.4th at pp. 706-708 [implied covenant of good faith and fair dealing requir es employer to give employee reasonable notice of changes in the terms or conditions of employment].) We do not suggest an employee may avoid an em ployer’s arbitration policy imposed as a condition of employment by remaining willfully , or even negligently , ignorant of the policy. For example, an employee may not avoid an implied-in-fact arbitration17 agreement by failing to read a notice the empl oyer sent to notify the employee about the employer’s arbitration policy. (See 24 Hour Fitness , supra , 66 Cal.App.4th at p. 1215 [employee who signed acknowledgment that she received an employee handbook containing an arbitration pr ovision cannot avoid arbitra tion by failing to read the handbook; “‘“[a] party cannot use his own l ack of diligence to avoid an arbitration agreement”’”].) Here, however, Integrated fa iled to show it gave Cade notice of its arbitration policy imposed as a condition of employment. Accordingly, we affirm the trial cour t’s order denying Integrated’s motion to compel Cade to arbitrate her claims becaus e Integrated failed to establish it had either an express or implied-in-fact ar bitration agreement with Cade.

D. Integrated Cannot Compel Plaintiffs to Arbitrate Their Claims Because It Failed to Establish the Terms of an En forceable Arbitration Agreement Integrated contends the trial court e rred in denying its motions to compel
arbitration because Plaintiffs each agreed to arbitrate their claims under the Fair
Treatment Process set forth in the Tenet Em ployee Handbook. According to Integrated, the Employee Acknowledgment Form, Appli cation for Employment, and Transition Letter Plaintiffs signed incorporated the Fa ir Treatment Process and established its binding arbitration provisions as the exclus ive means for resolving all claims regarding Plaintiffs’ employment. Although we agree Pl aintiffs (except Cade) generally agreed to

a Fair Treatment Process by signing one or more of these documents, we nonetheless affirm the trial court’s order denying the moti ons to compel arbitration because Integrated failed to present sufficient evidence establis hing the specific Fair Treatment Process it presented to the trial court was the Fair Trea tment Process to which Plaintiffs agreed. “‘“‘It is, of course, the law that th e parties may incorporate by reference
into their contract the terms of some other document. [Citations.] But each case must turn on its facts. [Citation.] For the terms of another docume nt to be incorporated into the document executed by the parties the refere nce must be clear and unequivocal, the18 reference must be called to th e attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.’” [C itations.]’ [Citation.]” ( Wolschlager v. Fidelity National Title
Ins. Co. (2003) 111 Cal.Ap p.4th 784, 790 ( Wolschlager ).) “The contract need not recite that it ‘incorporates’ another document, so long as it ‘guide[s] the reader to the incorporated document.’ [Citations.]” ( Shaw v. Regents of University of California (1997) 58 Cal.App.4th 44, 54.) If these conditions are met, an employee may agree to arbitrate claims against his or her employe r by signing an acknowledgment form that incorporates the employer’s employee handbook and the arbitration policy it contains. ( Serpa , supra , 215 Cal.App.4th at p. 705; see also 24 Hour Fitness , supra , 66 Cal.App.4th at p. 1205.) The party seeking to enforce an ar bitration provision incorporated by reference must establish the provision it seeks to enforce is the same provision to which the parties agreed. ( Kleveland v. Chicago Title Ins. Co. (2006) 141 Cal.App.4th 761, 765 ( Kleveland ).) In Kleveland , a title insurance company pr ovided the plaintiff with a preliminary title report offering to insure the plaintiff’s property on the terms provided in the report, including the terms of the standa rd American Land Title Association policy form (ALTA policy) the report incorporated by reference. The report did not include an arbitration provision, but the ALTA policy did. The plain tiff accepted the offer in the title report and purchased insurance from th e insurer on those terms. The insurer, however, issued the plaintiff a standard California Land T itle Association form policy (CLTA policy) rather than th e ALTA policy agreed to in the preliminary title report. When the plaintiff later f iled suit against the insurer regarding an easement the preliminary title report failed to identify, th e insurer petitioned to compel arbitration based on an arbitration provision in the CLTA policy. The trial court denied the petition and the Court of Appeal affirmed. ( Id . at pp. 763-764.)19 Although the preliminary title report in corporated the ALTA policy and its arbitration provision, the Kleveland court explained the insurer could not enforce that arbitration provision because the insurer di d not issue the ALTA policy upon which the parties agreed and therefore the ALTA polic y’s arbitration provision never went into effect. The court further explained the insure r could not enforce the arbitration provision in the CLTA policy because th e preliminary title report did not incorporate that policy and therefore the parties did not agree to its arbitration provision. The insurer argued the court should nonetheless order the plaintiff to arbitration because the plaintiff agreed to arbitration by accepting the title report incorpor ating the ALTA policy and the arbitration provisions in the two policies we re “virtually identical.” The Kleveland court, however,
found the similarities between the two policies irrelevant be cause the court could only enforce the specific arbitration provision on which the parties agre ed and the insurer’s
decision to issue a different policy prevented that provision from going into effect. ( Kleveland , supra , 141 Cal.App.4th at p. 765.)
The Kleveland decision emphasizes mutual cons ent is an esse ntial element of any contract. (See Weddington , supra , 60 Cal.App.4th at p. 811.) “Consent is not mutual, unless the parties all agree upon the sa me thing in the same sense.” (Civ. Code, § 1580.) Indeed, “[t]he parties’ outward mani festations must show that the parties all agreed ‘upon the same thing in the same se nse.’ [Citation.] If there is no evidence establishing a manifestation of assent to the ‘same thing’ by both par ties, then there is no
mutual consent to contract and no c ontract formation. [Citations.]” ( Weddington , at p. 811.) Here, we affirm the trial court’s or der denying the motions to compel arbitration because Integrated failed to show Plaintiffs and Integrat ed agreed upon the same thing in the same sense — that is, to arbitrate Plainti ffs’ claims under the specific Fair Treatment Process that Integrated pres ented to the trial court as the controlling arbitration provision. As Kleveland demonstrates, it is not suffi cient for the party seeking20 to compel arbitration to show the parties generally agreed to arbitrate their disputes by incorporating some arbitration provision into their contract. Rather, the party must establish the precise arbitration provision which the parties inco rporated into their agreement to govern their disputes.
As the Fair Treatment Process to whic h it and Plaintiffs agreed, Integrated presented 12 pages from the “Western Me dical Center Employee Handbook, Western Medical Center Santa Ana” (Western Med Sa nta Ana Employee Handbook). Integrated, however, failed to present any evidence identifying the Western Med Santa Ana Employee Handbook as the source of the Fair Treatment Process to which Plaintiffs agreed. The Employee Acknowledgment Fo rm, Application for Employment, and
Transition Letter Plaintiffs si gned either identify documents other than the Western Med Santa Ana Employee Handbook as the source of the incorporated Fair Treatment Process or identify no specific document at all as the source of the agreed-upon Fair Treatment Process. Moreover, Integrat ed provides no explanation how the seven Plaintiffs who worked at hospitals other than Western Med Santa Ana agreed to an arbitration provision in an employee handbook for a hosp ital at which they did not work. 7 The Employee Acknowledgment Form fi ve Plaintiffs signed states they received a copy of the “Tenet Employee Ha ndbook and Standards of Conduct” and the
“Tenet Fair Treatment Process brochure.” Th e Form does not mention either the Western Med Santa Ana Employee Handbook or that the Fair Treatment Process is set forth in any employee handbook. To the cont rary, the Form states the Fa ir Treatment Process is in the Tenet Fair Treatment Process brochure, but Integrated failed to submit a copy of that

7 Any argument that an implied-in -fact arbitration agreement required Plaintiffs to arbitrate their claims also wo uld fail for the same reasons. Although all Plaintiffs except Cade acknowledged Integrat ed had an arbitrati on policy and continued working for Integrated, Integrated failed to es tablish the terms of that policy and therefore it may not be enforced against Plaintiffs.21 brochure to the trial court and does not expl ain that failure. Accordingly, the Employee Acknowledgment Form does not establish Plain tiffs agreed to the Fair Treatment Process set forth in the Western Med Santa Ana Empl oyee Handbook Integrated presented to the
trial court. The Application for Employment five ot her Plaintiffs signed states those Plaintiffs agreed all disputes regarding th eir employment would be subject to the Fair Treatment Process, including its binding ar bitration provisions. The Transition Letter another five Plaintiffs signed simply states those Plaintiffs agreed to utilize the existing Fair Treatment Process to resolve all disputes relating to their employment, but does not mention arbitration. Despite these clear refe rences to a Fair Treatment Process as the exclusive means for resolving all disputes, neither the Application nor the Letter guides the reader to any particular document where that Fair Treatment Process can be found. In particular, the Application and Letter do not refer to the Western Med Santa Ana Employee Handbook, which contained the c ontrolling Fair Treatment Process. ( Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 641, 643-644 ( Chan ) [refusing to enforce an arbitration provision purportedly incorporated into the parties’
contract because the contract failed to cl early identify by title the specific document containing the arbitration prov ision].) Accordingly, the Ap plication and Letter also fail to establish Plaintiffs agreed to the Fair Treatment Proce ss described in the Western Med Santa Ana Employee Handbook. Integrated contends it had only one Fair Treatment Process during the relevant time period and therefore the Fair Treatment Process described in the Western Med Santa Ana Employee Handbook is necessar ily the same Fair Treatment Process to which Plaintiffs agreed when they signed the Employee Acknowledgment Form, Application for Employment, a nd Transition Letter. But even if we assume Integrated had one Fair Treatment Process, Integrated s till failed to meet its burden of establishing22 Plaintiffs agreed to the Fair Treatment Pr ocess as described in the Western Med Santa Ana Employee Handbook. As explained above, incorporation by reference requires the parties’ contract to clearly and unequivocally identify the document being incorporated ( Wolschlager , supra , 111 Cal.App.4th at p. 790) and it is the terms in that specific document to which the parties agree (see Kleveland , supra , 141 Cal.App.4th at p. 765). The Employee Acknowledgment Form incorporated the Fair Treatment Process as
described in the Tenet Fair Treatment Proce ss brochure, not as described or summarized in any other document. Integrated neither presented the Tenet Fair Treatment Process brochure nor explained why it failed to do so. Moreover, Integrated presents no authority that allows it to establish terms incorporat ed into a contract by presenting documents other than the one incorporated into the contract. We declin e to compel arbitration based on a document to which the parties did not agree. (See ibid .) Whether Integrated had only one Fair Treatment Process similarly does not overcome the evidentiary deficiencies relati ng to the Application for Employment or
Transition Letter some Plainti ffs signed. As explained ab ove, although both documents refer to the Fair Treatment Process, neither clearly and unequivocally identifies where that process is set forth, and therefore fails to adequately incorporate it by reference. ( Chan , supra , 178 Cal.App.3d at pp. 641, 643-644.) Integrated next argues the Wester n Med Santa Ana Employee Handbook it
introduced into evidence is the employee handbook referred to in the Employee Acknowledgment Form. Accord ing to Integrated, it is “o bvious” Integrated simply placed a Western Med Santa Ana cover page on the existing Tenet Employee Handbook when it purchased the Ho spitals because the body of the Handbook repeatedly refers to
Tenet rather than Western Med Santa Ana. This argument is a red herring because the Employee Acknowledgment Form refers to the Tenet Fair Tr eatment Process brochure as
the source of the Fair Treatment Proce ss, not the Tenet Employee Handbook.23 Nonetheless, we reject this argument be cause it is based solely on speculation unsupported by any evidence in the record. The repeated references to Tenet in the Western Med Santa Ana Employee Handbook do not establish it as the Tenet Employee Handbook when the title page clearly iden tifies it as the Western Med Santa Ana Employee Handbook. The references to Te net in the Western Med Santa Ana Employee Handbook are neither surprising nor signifi cant because Tenet owned Western Med Santa
Ana when it issued the handbook. Integrated also contends we may ignore the incorporation references to the Fair Treatment Process in the Employee Ac knowledgement Form and Application for Employment and enforce those documents as stand-alone arbitration agreements because they express an intent to arbitrate all disput es between Integrated and Plaintiffs. Both documents state Plaintiffs agree to submit any dispute regarding their employment to binding arbitration. The Employee Acknowle dgment Form further states the arbitration
will be conducted under the American Arbitr ation Association’s procedural rules and
describes how the arbitrator’s fees and ad ministrative costs will be divided among the parties. 8 We nonetheless decline to enforce th ese documents as stand-alone arbitration agreements because they are incomplete without the Fair Treatment Process, which each document incorporated as the governing proce ss for resolving all di sputes. Without the incorporated Fair Treatment Process, we cannot determine the terms under which any arbitration must be conducted. There simply would be no basis to enforce the agreement.

8 Although Integrated initia lly contends the Transiti on Letter also should be enforced as a stand-alone arbitration agreemen t, it fails to point to any language in the Transition Letter expressing an intent to arbitrate any claims other than the language incorporating the Fair Treatment Process. Indeed, the Transition Letter merely states Integrated and Plaintiffs agree to utilize the Fair Treatment Pr ocess to resolve all disputes relating to Plaintiffs’ employment. The Transition Letter fails to even mention arbitration.24 A petition to compel arbitration “‘“‘is in essence a suit in equity to compel specific performance of a contract.’”’ [Citations.]” ( Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 641-642; see also Gorlach , supra , 209 Cal.App.4th at p. 1505.) As with any other specific performance claim, a party seeking to enforce an arbitration agreement must show th e agreement’s terms “‘are sufficiently definite to enable the court to know what it is to enforce.’” ( Real Estate Analy tics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472; 13 Witkin, Summa ry of Cal. Law (10th ed. 2005) Equity, § 42, p. 334.) Indeed, a petition to compel arb itration must set forth the provisions of the arbitration agreement verbatim or attach a copy of the agreement and incorporate it by reference. (Cal. Rules of Court, rule 3.1330; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) “‘Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.’ [Citation].” ( Weddington , supra , 60 Cal.App.4th at p. 817.) Because the Employee Acknowledgment Form and Application fo r Employment are incomplete without the incorporated Fair Treatment Pro cess, we may not enforce them as stand-alone arbitration agreements. (See id . at pp. 816-817.) Finally, Integrated contends we shoul d reverse the trial court’s decision denying its motions because Plai ntiffs’ trial court oppositions conceded Plaintiffs each agreed to arbitrate their claims against Inte grated. We reject this contention because it does not address the grounds on which we affirm the trial court’s decision. We acknowledge all Plaintiffs excep t Cade signed at least two doc uments stating they agreed to arbitrate their claims agai nst Integrated. We nonetheless affirm the trial court’s decision because Integrated failed to present sufficient evidence to establish all of the terms of the parties’ agreement and therefor e we cannot enforce the agreement. Nothing in Plaintiffs’ trial court oppositions overcom es the evidentiary shortcomings described
above.25 We emphasize our decision is based solely on the in sufficiency of Integrated’s evidence. We do not suggest an arbitrati on provision in an employee handbook is unenforceable or that employees ca nnot agree to arbitration by signing an acknowledgment form regarding an employee handbook that contains an arbitration provision. Rather, we affirm the trial court decision because the incomplete and confusing patchwork of documents Integrated submitte d prevents us from finding an enforceable arbitration agreemen t. Because we affirm the trial court’s decision based on the insufficiency of Integrated ’s evidence, we do not address the merits of the parties’ contentions concerning the unc onscionability of the Fair Treatment Process described in
the Western Med Santa An a Employee Handbook.

III

D ISPOSITION

The order is affirmed. Plaintiffs sh all recover their costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.