Filed 6/25/15 Tong v. Orange Coast Mem. Med. Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 

JONATHAN TONG et al., 

 Plaintiffs and Respondents, 

 v. 

ORANGE COAST MEMORIAL 

MEDICAL CENTER, 

 Defendant and Appellant. 

 G050038 

 (Super. Ct. No. 30-2012-00542508) 

 O P I N I O N 

Appeal from an order of the Superior Court of Orange County, Elizabeth K. 

Eagleson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. 

Foley & Lardner, Tami S. Smason and Sonia Salinas for Defendant and 

Appellant. 

Younesi & Yoss, John D. Younesi and Jan A. Yoss for Plaintiffs and 

Respondents. 

* * * 
2

Plaintiffs and respondents Jonathan Tong, Wynnson Tom, Thomas Nguyen, 

and James Chang (collectively, Plaintiffs) sued defendant and appellant Orange Coast 

Memorial Medical Center (Orange Coast) as third party beneficiaries under a contract 

Orange Coast entered into with another party. Orange Coast moved to compel Plaintiffs 

to arbitrate their breach of contract claim, arguing Plaintiffs are bound by the arbitration 

provision in Orange Coast’s contract with the other party “to the extent that Plaintiffs 

claim to be third party beneficiaries to this contract.” Orange Coast, however, denied 

Plaintiffs were third party beneficiaries under the contract or that it had any contractual 

relationship with Plaintiffs. Based on our decision in Brodke v. Alphatec Spine, Inc.

(2008) 160 Cal.App.4th 1569 (Brodke), the trial court denied the motion because Orange 

Coast failed to affirmatively allege an arbitration agreement existed between it and 

Plaintiffs. 

In Brodke, this court concluded Code of Civil Procedure section 1281.2’s 

plain language requires a party moving to compel arbitration to affirmatively allege an 

agreement to arbitrate exists between the parties.1 We explained a defendant moving to 

compel arbitration cannot meet this burden by simply arguing the plaintiff either admitted 

an arbitration agreement existed or cannot deny its existence because the plaintiff’s 

claims are based on a contract that included an arbitration provision. Arbitration is a 

matter of contract and a motion to compel arbitration essentially is an action in equity to 

specifically enforce an arbitration agreement. Accordingly, a party cannot specifically 

enforce an arbitration agreement and simultaneously deny it has any contractual 

relationship with the party it seeks to compel into arbitration. 

We also reject Orange Coast’s contention Plaintiffs agreed to arbitration by 

signing a separate contract with another party that incorporates the contract containing 

the arbitration provision on which Orange Coast relied in making its motion. 

 1 All statutory references are to the Code of Civil Procedure. 
3

Incorporating a provision from another contract requires a clear and unequivocal 

reference to that contractual provision. The contract Plaintiffs signed, however, 

ambiguously states it incorporates “pertinent portions” of Orange Coast’s contract 

without referring to arbitration or specifying which portions it incorporated. That is 

insufficient. We therefore affirm the trial court’s decision to deny arbitration. 

I 

FACTS AND PROCEDURAL HISTORY

Orange Coast is a general acute care hospital located in Fountain Valley, 

California. In 2000, Magdi Sidhom, M.D., and Orange Coast entered into the “Exclusive 

Professional Services Agreement” (Exclusive Services Agreement), making Sidhom the 

exclusive provider of anesthesiology services at the hospital. The Exclusive Services 

Agreement authorized Sidhom to hire other anesthesiologists to work at Orange Coast, 

but required those anesthesiologists to contract with Sidhom. Under the Exclusive 

Services Agreement, Sidhom controlled all scheduling, billing, and other administrative 

matters concerning anesthesiology services at Orange Coast. The Exclusive Services 

Agreement also included an arbitration provision stating, “Any Controversy or claim 

arising out of or relating to this Agreement, or the breach thereof, shall be settled by a 

single arbitrator in arbitration at Los Angeles, California, administered by the American 

Arbitration Association under its Commercial Arbitration Rules, and judgment on any 

award rendered by the arbitrator may be entered in any court having jurisdiction 

thereof. . . .” 

Plaintiffs each entered into a separate “Anesthesiology Services 

Agreement” (Anesthesiology Agreement) with Sidhom to become a staff member eligible 

to provide anesthesiology services at Orange Coast. Under the Anesthesiology 

Agreement, each Plaintiff agreed to provide services as an independent contractor and 

accept payment from Sidhom based on a “pooled income methodology.” The 
4

Anesthesiology Agreement repeatedly referred to the Exclusive Services Agreement and 

incorporated by reference the “pertinent portions” that were purportedly attached as 

Exhibit “A,” but no portions of the Exclusive Services Agreement are attached to the 

copies of the Anesthesiology Agreement included in the record and nothing purports to 

identify which portions of the Exclusive Services Agreement were to be attached. The 

Anesthesiology Agreement did not include an arbitration provision. 

In 2011, Plaintiffs and others noticed irregularities in the compensation 

they received from Sidhom. When Plaintiffs confronted Sidhom, he allegedly 

acknowledged he had been taking more than he was entitled from the pool of funds he 

received for Plaintiffs’ services. In response, Plaintiffs negotiated with Sidhom and 

Orange Coast for repayment of the funds, and for a new compensation structure. When 

these negotiations were unsuccessful, Sidhom and Orange Coast either terminated 

Plaintiffs’ rights to provide anesthesiology services at Orange Coast or forced them to 

relinquish those rights. 

In February 2012, Plaintiffs filed this action against Sidhom, Orange Coast, 

Orange Coast’s chief executive officer, and others alleging a conspiracy to steal money 

from Plaintiffs and the other anesthesiologists who worked at Orange Coast. After 

several rounds of demurrers and summary adjudication motions, the trial court granted 

Plaintiffs leave to file a fifth amended complaint to add a breach of contract claim against 

Orange Coast. In that claim, Plaintiffs alleged they were third party beneficiaries under 

the Exclusive Services Agreement and Orange Coast was a “third party obligor” under 

the Anesthesiology Agreement. According to Plaintiffs, Orange Coast breached both 

agreements by terminating their rights to work at Orange Coast without cause and in 

retaliation for Plaintiffs complaining about Sidhom’s thefts. Plaintiffs seek to recover the 

compensation they would have received if they continued to work at Orange Coast and 
5

their attorney fees based on the attorney fee clauses in the Exclusive Services Agreement 

and the Anesthesiology Agreement.2 

Orange Coast moved to compel Plaintiffs to arbitrate their new breach of 

contract cause of action based on the Exclusive Services Agreement’s arbitration 

provision. In making the motion, Orange Coast denied Plaintiffs were third party 

beneficiaries under the Exclusive Services Agreement and that it was a third party obligor 

under the Anesthesiology Agreement. Nonetheless, Orange Coast argued Plaintiffs must 

arbitrate their breach of contract claim because they based their claim on the Exclusive 

Services Agreement, and therefore equitable estoppel prevented them from refusing to 

arbitrate under that agreement’s arbitration provision. 

The trial court denied the motion on two grounds. First, because Orange 

Coast denied it had a contractual relationship with Plaintiffs and that Plaintiffs were third 

party beneficiaries under the Exclusive Services Agreement, Orange Coast failed to 

allege an arbitration agreement existed between Plaintiffs and Orange Coast. Second, the 

court found ordering Plaintiffs to arbitrate their breach of contract claim may lead to 

conflicting rulings on legal or factual issues common to the claims against the other 

defendants.3 (See § 1281.2, subd. (c).) Orange Coast timely appealed. 

 2 Plaintiffs remaining causes of action against Orange Coast and the other 

defendants are not at issue on this appeal. 

3 We do not address whether the trial court properly denied the motion to 

compel arbitration on this second ground because our conclusion Orange Coast failed to 

affirmatively allege an arbitration agreement between it and Plaintiffs renders this issue 

moot. 
6

II 

DISCUSSION

A. Basic Legal Principles on Compelling Arbitration 

California has a strong public policy favoring arbitration as a speedy and 

relatively inexpensive means of dispute resolution. Arbitration, however, is a matter of 

contract. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59 

(Avery).) “The ‘“‘“‘. . . policy favoring arbitration cannot displace the necessity for a 

voluntary agreement to arbitrate.’” [Citation.] “Although ‘[t]he law favors contracts for 

arbitration of disputes between parties’ [citation], ‘“there is no policy compelling persons 

to accept arbitration of controversies which they have not agreed to arbitrate. . . .”’ 

[Citations.]”’ [Citation.] ‘Absent a clear agreement to submit disputes to arbitration, 

courts will not infer that the right to a jury trial has been waived.’”’” (Ibid., original 

italics.) 

Section 1281.2 therefore requires a trial court to grant a motion to compel 

arbitration “if [the court] determines that an agreement to arbitrate the controversy 

exists.” (§ 1281.2.) The party seeking to compel arbitration has the initial burden to 

allege and prove the existence of a valid, written arbitration agreement that applies to the 

dispute. Once that burden is satisfied, the party opposing arbitration must prove by a 

preponderance of the evidence any defense to the arbitration agreement’s enforcement. 

(Ibid.; Avery, supra, 218 Cal.App.4th at p. 59; Brodke, supra, 160 Cal.App.4th at 

p. 1574.) 

“‘There is no uniform standard of review 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 substantial evidence standard. [Citations.] Alternatively, if the 

court’s denial rests solely on a decision of law, then a de novo standard of review is 

employed. [Citations.]’ [Citation]” (Avery, supra, 218 Cal.App.4th at p. 60.) Here, 
7

there are no disputed factual issues, and therefore we review the trial court’s ruling 

de novo. (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 

109 Cal.App.4th 1705, 1715-1716 (Metalclad).) 

B. Orange Coast Failed to Affirmatively Allege an Arbitration Agreement Existed 

With Plaintiffs 

Orange Coast contends the trial court erred by concluding Orange Coast 

failed to meet its burden to allege the existence of an arbitration agreement. According to 

Orange Coast, it satisfied its burden by alleging Plaintiffs based their breach of contract 

claim on the Exclusive Services Agreement and that agreement included an arbitration 

provision. We disagree because Orange Coast misconstrues its burden as the party 

moving to compel arbitration. 

In Brodke, this court examined section 1281.2’s requirement that a party 

allege and prove the existence of a valid arbitration agreement before it may compel 

arbitration. There, four plaintiffs sued a medical device manufacturer to recover royalties 

under a product development agreement, and the manufacturer moved to compel 

arbitration based on an arbitration provision in the agreement. In doing so, the 

manufacturer expressly “‘contest[ed] the existence or validity’” of any written agreement 

with the plaintiffs, but nonetheless argued the plaintiffs must arbitrate their claims 

because the plaintiffs based their claims on an agreement that included an arbitration 

provision. (Brodke, supra, 160 Cal.App.4th at pp. 1572-1573, italics omitted.) The trial 

court denied the motion because the manufacturer failed to “‘“allege the existence of a 

written agreement to arbitrate a controversy”’” as required by section 1281.2.4 (Brodke, 

at p. 1573.) 

 4 Section 1281.2 provides, “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 
8

The Brodke court affirmed, concluding a party could not simultaneously 

seek to enforce a contract’s arbitration provision and deny that contract’s existence. 

(Brodke, supra, 160 Cal.App.4th at pp. 1571, 1575.) As we explained, section 1281.2’s 

plain language requires a party moving to compel arbitration to affirmatively “‘allege[] 

the existence of a written agreement to arbitrate’” because a motion to compel arbitration 

is “‘is in essence a suit in equity to compel specific performance of a contract.’” (Brodke, 

at pp. 1571, 1574.) The motion therefore serves the function of a complaint for specific 

performance, and the moving party fails to state a cause of action unless it alleges the 

existence of an agreement to arbitrate. (Id. at p. 1575.) By contesting “‘the existence or 

validity’” of any written agreement with the plaintiffs, the manufacturer “failed to satisfy 

the most basic statutory prerequisite to granting the [motion to compel arbitration]—to 

allege the existence of a written agreement to arbitrate.” (Id. at p. 1574.) 

In reaching this conclusion, we rejected the manufacturer’s contention it 

was not required to allege the existence of a written arbitration agreement because the 

allegations of the plaintiffs’ complaint admitted the agreement existed. We explained the 

allegations in one party’s pleading cannot satisfy the burden of another party to allege 

every element of its claim. Moreover, although the “plaintiffs’ admissions [in their 

complaint] are an appropriate means by which the existence of an agreement may be 

proved, there is simply no reason to prove anything until the moving party alleges the 

existence of that which is to be proved.” (Brodke, supra, 160 Cal.App.4th at p. 1575.) 

Indeed, regardless of the basis for a plaintiff’s claims, a motion to compel arbitration 

must be denied if the moving party fails to affirmatively allege an arbitration agreement 

exists between the plaintiff and the defendant. (Id. at p. 1571.) 

 

controversy exists, unless it determines [a defense to enforcement exists].” (Italics 

added.) 
9

Here, Orange Coast failed to satisfy this “most basic statutory prerequisite 

to granting [a motion to compel arbitration].” (Brodke, supra, 160 Cal.App.4th at 

p. 1574.) Orange Coast alleged that the Exclusive Services Agreement between it and 

Sidhom included an arbitration provision. But Orange Coast also alleged Plaintiffs are 

not parties to the Exclusive Services Agreement and are not third party beneficiaries 

entitled to any benefits under that agreement. Thus, Orange Coast alleged an arbitration 

agreement existed, but not between it and Plaintiffs. Like the manufacturer in Brodke, 

Orange Coast sought to satisfy its burden by pointing to the allegations Plaintiffs made in 

their breach of contract claim and alleging “to the extent that Plaintiffs claim to be third 

party beneficiaries to [the Exclusive Services Agreement], they must be similarly bound 

by the contract’s arbitration provision.” Reliance on Plaintiffs’ allegations, however, 

fails to satisfy Orange Coast’s burden to affirmatively allege it had an arbitration 

agreement with Plaintiffs. Simply put, by denying the existence of any contractual 

relationship with Plaintiffs, Orange Coast cannot satisfy its burden. 

Orange Coast emphasizes the moving party in Brodke claimed the 

agreement that included the arbitration provision was invalid, but here Orange Coast does 

not contest the validity of the Exclusive Services Agreement and its arbitration provision. 

This argument misconstrues Brodke and the burden section 1281.2 imposes on the 

moving party to allege the existence of an agreement to arbitrate. To meet its burden, 

Orange Coast must allege the existence of an arbitration agreement between the parties

subject to the arbitration provision. As explained above, arbitration is a matter of 

contract (Avery, supra, 218 Cal.App.4th at p. 59), and therefore a party cannot be sent to 

arbitration unless there is an arbitration agreement between that party and the party 

seeking to compel arbitration. Although Orange Coast alleged an arbitration agreement 

existed, it also alleged Plaintiffs are not parties to that agreement and are not third party 

beneficiaries under it. 
10

Contrary to Orange Coast’s contention, our interpretation of Brodke does 

not require a party to “concede that an arbitrable claim is meritorious in order to succeed 

in a motion to compel arbitration.” A defendant seeking to compel arbitration remains 

free to deny liability by arguing it did not breach the contract, it did not cause the 

plaintiff’s damages, the plaintiff did not suffer any damages, and any other applicable 

defense. The only contention the defendant cannot make is that no contractual 

relationship exists between the parties because that contention prevents the defendant 

from satisfying its burden under section 1281.2 to affirmatively allege an arbitration 

agreement existed between the defendant and the plaintiff. 

Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 

186 Cal.App.4th 696 (Molecular Analytical), illustrates this distinction. There, the 

plaintiff sued two defendants based on a licensing agreement it entered into with one 

defendant, who then assigned the agreement to the second defendant. Both defendants 

moved to compel arbitration based on an arbitration provision in the licensing agreement. 

(Id. at pp. 701-702.) Citing Brodke, the plaintiff opposed the motion by arguing the 

defendants failed to meet their burden to allege and prove the existence of an arbitration 

agreement because the defendants denied all of the plaintiff’s claims. (Molecular 

Analytical, at p. 709.) The Molecular Analytical court rejected this argument, explaining 

the defendants in its case did not dispute the existence of the licensing agreement in 

moving to compel arbitration. (Id. at p. 710.) Because the Molecular Analytical

defendants simply denied they were liable to the plaintiff, the court concluded the facts in 

its case were “entirely dissimilar” to those in Brodke. (Molecular Analytical, at p. 710.) 

Moreover, Brodke points out that requiring a party moving to compel 

arbitration to affirmatively allege the existence of an agreement to arbitrate does not 

require that party to surrender any defense it may have to the underlying action. (Brodke, 

supra, 160 Cal.App.4th at p. 1576.) Indeed, section 1281.2’s pleading requirement does 

not prevent a party from challenging the existence of a contractual relationship; it merely 
11

requires the party to do so in court because denying the existence of a contractual 

relationship is inconsistent with arbitration’s contractual nature. 

C. Equitable Estoppel Did Not Relieve Orange Coast of Its Burden to Affirmatively 

Allege the Existence of an Arbitration Agreement 

Orange Coast contends the trial court erroneously denied the motion to 

compel arbitration because Plaintiffs based their breach of contract claim on a contract 

containing an arbitration provision—the Exclusive Services Agreement—and therefore 

Plaintiffs were equitably estopped from refusing to arbitrate that claim. We disagree. 

Although the equitable estoppel doctrine generally may be applied to enforce arbitration 

agreements against nonsignatories, it does not excuse Orange Coast from its statutory 

burden to affirmatively allege an arbitration agreement existed between it and Plaintiffs. 

When it applies, the equitable estoppel doctrine provides an exception to 

the general rule that “‘one must be a party to an arbitration agreement to be bound by it or 

invoke it.’” (Molecular Analytical, supra, 186 Cal.App.4th at p. 706.) Under this 

doctrine, “a nonsignatory ‘is estopped from avoiding arbitration if it knowingly seeks the 

benefits of the contract containing the arbitration clause.’” (Crowley Maritime Corp. v. 

Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1070.) “‘The fundamental 

point . . . is that [a party is] not entitled to make use of the [contract containing an 

arbitration clause] as long as it worked to her advantage, then attempt to avoid its 

application in defining the forum in which her dispute . . . should be resolved.’ 

[Citation.] The doctrine thus prevents a party from playing fast and loose with its 

commitment to arbitrate, honoring it when advantageous and circumventing it to gain 

undue advantage.” (Metalclad Corp., supra, 109 Cal.App.4th at p. 1714.) 

Orange Coast cites several cases acknowledging equitable estoppel may 

allow a nonsignatory defendant to enforce an arbitration agreement against a signatory 

plaintiff, and a signatory defendant to enforce an arbitration agreement against a 

nonsignatory plaintiff. (See, e.g., JSM Tuscany, LLC v. Superior Court (2011) 
12

193 Cal.App.4th 1222, 1236-1241 [acknowledging potential application of equitable 

estoppel, but remanding because appellate record lacked sufficient evidence to show 

equitable estoppel applied]; Molecular Analytical, supra, 186 Cal.App.4th at pp. 714-717 

[allowing nonsignatories to enforce arbitration agreement based on equitable estoppel]; 

Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 220-221, 229-234 [acknowledging 

equitable estoppel may be relied upon to enforce arbitration agreement against 

nonsignatory, but declining to do so on facts of case]; Rowe v. Exline (2007) 

153 Cal.App.4th 1276, 1286-1290 [allowing nonsignatories to enforce arbitration 

agreement based on equitable estoppel].) 

None of these cases, however, addressed section 1281.2’s requirement that 

the party moving to compel arbitration must affirmatively allege the existence of an 

arbitration agreement that applies to the parties. More importantly, none of these cases 

involved a moving party who sought to compel arbitration despite denying the party 

allegedly subject to arbitration had any contractual relationship with the moving party. 

In contrast, Brodke addressed both section 1281.2’s pleading requirement 

and equitable estoppel. As explained above, the Brodke defendant moved to compel 

arbitration while simultaneously denying it had any contractual relationship with the 

plaintiffs. (Brodke, supra, 160 Cal.App.4th at pp. 1572-1573.) The defendant argued it 

did not have to allege the existence of an arbitration agreement between the parties 

because the plaintiffs based all their claims on a contract that included an arbitration 

clause, and therefore the plaintiffs were equitably estopped from avoiding arbitration. 

The trial court denied the motion and this court affirmed because section 1281.2’s 

requirement to affirmatively allege the existence of an arbitration agreement between the 

parties is a pleading burden the moving party must satisfy to put the motion to compel 

arbitration at issue. Without an affirmative allegation that an arbitration agreement exists 

between the parties, the court never reaches the question whether the opposing party 

either has admitted the agreement’s existence or is equitably estopped from denying its 
13

existence. As the Brodke court explained, nothing in the cases relying on equitable 

estoppel to enforce an arbitration agreement allows “a party petitioning to enforce an 

arbitration clause [to] simultaneously deny the existence of the very contract sought to be 

enforced,” or “excuse[s] the statutory requirement that a party seeking to compel 

arbitration must affirmatively allege the existence of a written arbitration agreement.” 

(Brodke, at p. 1575.) 

We follow Brodke and conclude Orange Coast may not rely on equitable 

estoppel to excuse its failure to affirmatively allege the existence of an agreement to 

arbitrate between it and Plaintiffs. By definition, equitable estoppel is an equitable 

doctrine with fairness as its linchpin. Orange Coast fails to explain how equity or 

fairness requires the trial court to enforce the arbitration provision in the Exclusive 

Services Agreement against Plaintiffs when Orange Coast alleges Plaintiffs are neither 

parties to that agreement nor third party beneficiaries with any rights under it. (See City 

of Hope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1370 [declining to apply 

equitable estoppel to allow nonsignatory to enforce arbitration agreement because 

moving party failed to explain how fairness required enforcement of the agreement].) 

D. Plaintiffs Did Not Agree to Arbitration by Entering Into the Anesthesiology 

Agreement 

Regardless whether it may directly enforce the Exclusive Services 

Agreement’s arbitration clause against Plaintiffs, Orange Coast contends the trial court 

erred in denying the motion to compel arbitration because Plaintiffs concede they signed 

the Anesthesiology Agreement, and that agreement repeatedly refers to and incorporates 

by reference the Exclusive Services Agreement and its arbitration clause. According to 

Orange Coast, Plaintiffs therefore agreed to arbitrate their claims by signing the 

Anesthesiology Agreement. We disagree. 

“[A]n agreement need not expressly provide for arbitration, but may do so 

in a secondary document which is incorporated by reference . . . .” (Chan v. Drexel 
14

Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 639 (Chan).) “‘“But each case must 

turn on its facts. [Citation.] For the terms of another document to be incorporated into 

the document executed by the parties the reference must be clear and unequivocal, the 

reference must be called to the 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.”’” (Id. at p. 641, italics omitted; see Troyk v. Farmers Group, Inc.

(2009) 171 Cal.App.4th 1305, 1331; Baker v. Osborne Development Corp. (2008) 

159 Cal.App.4th 884, 895.) 

In Chan, the defendant was a securities brokerage firm that employed the 

plaintiff as a stockbroker. During her employment, the plaintiff signed a uniform 

application to register with the National Association of Securities Dealers, the American 

Stock Exchange, and the New York Stock Exchange (NYSE). The application stated the 

plaintiff “‘agree[d] to abide by the Statute(s), Constitution(s), Rule(s) and By-Laws . . . of 

the agency jurisdiction or organization with or to which [she submitted the application].’” 

(Chan, supra, 178 Cal.App.3d at p. 636.) The NYSE’s rules required registered 

stockbrokers to arbitrate any controversy arising out of their employment with a NYSE 

member. (Ibid.) When the plaintiff later sued for wrongful termination, the defendant 

moved to compel arbitration based on the NYSE’s arbitration rule. The trial court denied 

the motion, rejecting the defendant’s argument the application the plaintiff signed 

incorporated the NYSE’s arbitration rule. (Id. at pp. 636-637.) 

The Court of Appeal affirmed, explaining “‘the right to select a judicial 

forum, vis-à-vis arbitration, is a “‘substantial right,’” not lightly to be deemed waived.’” 

(Chan, supra, 178 Cal.App.3d at p. 643.) The Chan court found the vague reference to 

“‘the Statute(s), Constitution(s), Rule(s) and By-Laws’” of any organization to which the 

application was submitted did not incorporate the NYSE’s arbitration rule into the 

application because the reference “failed to clearly and unequivocally refer to the 
15

incorporated document [that included the arbitration provision]” and nowhere mentioned 

arbitration. (Id. at p. 643.) 

Here, the Anesthesiology Agreement does not bind Plaintiffs to the 

Exclusive Services Agreement’s arbitration clause because the Anesthesiology 

Agreement fails to clearly and unequivocally incorporate either the entire Exclusive 

Services Agreement or its arbitration clause. The Anesthesiology Agreement refers to 

the Exclusive Services Agreement six times, repeatedly acknowledging that Sidhom 

entered into the Exclusive Services Agreement to provide anesthesiology services at 

Orange Coast, that Plaintiffs “desire[]” to become members of the anesthesiology 

department at Orange Coast under the Exclusive Services Agreement, and that Plaintiffs 

must comply with the terms and conditions of the Exclusive Services Agreement.5 The 

Anesthesiology Agreement, however, includes only one reference that purports to 

incorporate the Exclusive Services Agreement, but that reference does not incorporate the 

entire Exclusive Services Agreement. Instead, the reference incorporates only the 

“pertinent portions” attached to the Anesthesiology Agreement. Unfortunately for 

 5 The following are the six references to the Exclusive Services Agreement in 

the Anesthesiology Agreement: (1) “WHEREAS, [Sidhom] has entered into an 

Anesthesia Agreement with [Orange Coast], a true and correct copy of pertinent portions 

of which is attached hereto and incorporated by reference as Exhibit ‘A’”; 

(2) “WHEREAS, [Plaintiffs] desire[] to be . . . staff member[s] of the Anesthesia 

Department of [Orange Coast], under [Sidhom’s] agreement with [Orange Coast]”; 

(3) “Such services include, but are not limited to, all of the services and activities which 

[Sidhom] is required to perform under the terms of the Anesthesia Agreements, 

Exhibit ‘A’ hereto”; (4) “[Plaintiffs] agree[] to act at all times in the manner which 

conforms to and is consistent with the spirit, terms and conditions of this Agreement and 

the Anesthesia Agreement between [Sidhom] and [Orange Coast], Exhibit ‘A’ hereto”; 

(5) “This Agreement may be immediately terminated by either [Sidhom] or by [Plaintiffs] 

for cause, which includes, without limitation, [Plaintiffs’] breach of [their] duties under 

Exhibit ‘A’”; and (6) “[Plaintiffs], at all times, shall fully comply with the requirements 

imposed upon anesthesiologists by [Sidhom’s] Anesthesia Agreement with [Orange 

Coast], Exhibit ‘A’ hereto, as amended and/or supplemented from time to time in the 

future.” 
16

Orange Coast, the copy of the Anesthesiology Agreement included in the record does not 

attach any portions of the Exclusive Services Agreement and Orange Coast does not 

identify which portions were purportedly attached. The other references to the Exclusive 

Services Agreement are not sufficient to incorporate the arbitration provision because 

they only generally refer to the standards for performing under the Exclusive Services 

Agreement without referring to arbitration or any other form of dispute resolution. 

Accordingly, although the Anesthesiology Agreement could have incorporated the 

Exclusive Services Agreement’s arbitration clause, it failed to adequately do so and 

Plaintiffs therefore are not bound by it.6

III 

DISPOSITION

The order is affirmed. Plaintiffs shall recover their costs on appeal. 

 

 ARONSON, J. 

WE CONCUR: 

BEDSWORTH, ACTING P. J. 

THOMPSON, J. 

 6 Because the Anesthesiology Agreement does not adequately incorporate the 

Exclusive Services Agreement’s arbitration clause, we need not decide whether that 

clause, if adequately incorporated, would require Plaintiffs to arbitrate claims against 

Sidhom only or both Sidhom and Orange Coast.