Filed 3/13/24 Herrera v. Centre for Neuro Skills CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

PRISCILLA HERRERA,

Plaintiff and Respondent,

v.

CENTRE FOR NEURO SKILLS et al.,

Defendants and Appellants.

F085587

(Super. Ct. No. BCV-22-101922)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, 

Judge.

Belden Blaine Raytis, T. Scott Belden and Kaleb L. Judy for Defendants and

Appellants.

Protection Law Group, Heather Davis, Amir Nayebdadash, Carlos Jimenez, and 

Jeffrey Jimenez for Plaintiff and Respondent.

-ooOoo-
2.

Defendants Centre for Neuro Skills (CNS), CFN Services, Inc., and CFN Services, 

Inc., California appeal from a December 16, 2022 order of the Kern County Superior 

Court denying their motion to compel arbitration. For reasons set forth below, we affirm 

the order.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Priscilla Herrera worked for CNS as a “Neuro Rehab Specialist” between 

June 2016 and September 2021. In August 2022, Herrera filed a class action complaint 

against defendants alleging various Labor Code violations. 

On November 7, 2022, defendants concurrently filed a motion to compel 

arbitration and a declaration of Laura Bennett—CNS’s “Associate Vice President, 

Human Resources”—in support thereof. In said declaration, Bennett averred in part:

“3. As part of my duties, I oversee CNS’s HR department. I also 

participate with other CNS management employees in decisions regarding 

employees, clients, suppliers, and insurers. As such I have personal 

knowledge as to each fact in this declaration. [¶] . . . [¶]

“22. CNS, as an employer, kept a personnel file for Plaintiff 

Priscilla Herrera. The personnel files consist of documents made in the 

regular course of CNS’s business, like employee applications, write-ups, 

and documents noting the dates of hiring or terminating an employee. 

These documents are all made when the event actually happened. For 

example, when an employee is terminated the document noting that would 

generally be prepared the same day. I am one of the custodians of records 

for CNS. [¶] . . . [¶]

“24. [A] CNS employee’s new-hire paperwork is a combination of 

paper documents and online forms. A lot of CNS’s application, hiring, and 

training process is done online.

“25. I have reviewed Ms. Herrera’s personnel file. Her personnel 

file looks essentially like every other CNS employee’s personnel file, and 

contains the same basic documents. Nothing about her personnel file 

would lead me to believe that the documents in it are inaccurate or 

unreliable. [¶] . . . [¶]
3.

“26. CNS’s employee training is a combination of online and 

hands-on training. Online training is done through CNS’s learning 

management system. At the time, this was a cloud-based service called 

‘MyNetLearning’ by Healthcare Source. Employees can access this service 

via a website, or can login from their ADP page.

“27. During Ms. Herrera’s employment, CNS used ADP’s 

‘WorkforceNow’ online system for certain HR services, including 

employee time-tracking, payroll, and employee tax reporting. Because we 

rely on ADP for all of these tasks, it is very important to CNS that the ADP 

system be secure and trustworthy. CNS trusts ADP’s systems in general, 

and its collection of employee electronic signatures in particular, because 

ADP is a well-known S&P 500 company that is a leader in employee data 

security.

“28. ADP does not provide CNS with an applicant or employee’s 

WorkforceNow credentials. ADP does not provide CNS with 

applicant/employee WorkforceNow passwords. [¶] . . . [¶]

“32. On June 17, 2016, Ms. Herrera logged in to CNS’s 

MyNetLearning online portal.

“33. Employee login credentials to MyNetLearning are 

automatically generated by ADP shortly after the employee is hired. The 

employee then receives an email prompting them to log-in to 

MyNetLearning, or can log in through their ADP profile. Employees can 

log-in using their personal email address or their CNS badge number.

“34. During the first log-in, the employee must choose a unique 

password. Only the employee knows their unique password (unless they 

choose to share it with another person). CNS HR and IT do not ask 

employees for these passwords and advise employees not to share their 

passwords with anyone.

“35. Once an employee logs in to MyNetLearning, they see a 

dashboard that includes a ‘to do list’ that shows the training modules that 

employee needs to complete, the documents they need to review, and the 

associated tests they need to take.

“36. All CNS employees, even management-level employees like 

me, are required to use MyNetLearning to access CNS training courses. 

Some trainings are done on hire, others are done periodically, and some are 

designed to advance employees’ understanding of rehabilitation to qualify 

them for raises or promotions.
4.

“37. Shortly after hire, new employees will do a series of trainings 

through MyNetLearning on CNS’s general policies, including the employee 

handbook, patient privacy, diversity, and safety.

“38. One of the periodic trainings is to review that year’s 

employee handbook, and then take an online test regarding certain contents 

of the handbook. CNS generally updates its handbook on a yearly basis.

“39. MyNetLearning can generate a transcript for each employee, 

showing what MyNetLearning courses the employee has completed, and 

the grade the employee received on the associated test. A true and correct 

copy of Ms. Herrera’s transcript is attached hereto as Exhibit C. Ms. 

Herrera’s transcript is consistent with the training all Neuro Rehab 

Specialist employees are required to do, and I believe it is reliable and 

accurate.

“40. Pursuant to Ms. Herrera’s MyNetLearning transcript, on 

June 17, 2016, (the week after she was hired) she completed multiple 

training modules, including ‘CNS Employee Handbook-CA.16’ i.e. CNS’s 

2016 employee handbook.

“41. A true and correct copy of CNS’s 2016 employee handbook 

is attached hereto as Exhibit D. The 2016 employee handbook contained a 

section titled ‘Arbitration Agreement’ on pages 67 and 68.

“42. To complete the ‘CNS Employee Handbook-CA.16’ training 

course, each employee had to take a test. A true and correct copy of the test 

questions and possible answers is attached hereto as Exhibit E.

“43. Ms. Herrera scored 100% on the test for this training course. 

Thus, she answered ‘yes’ to question 7, i.e. she answered ‘yes’ when 

presented with the statement ‘I acknowledge and agree that this Handbook 

contains an arbitration provision and I agree that my employment, and any 

disputes arising out of that employment shall be resolved by binding 

arbitration as provided in this Handbook.’

“44. To progress through each test, the employee will select an 

answer to the question, then click ‘next question’. At the end, the employee 

will click a button labelled ‘grade test’. At that point the employee can 

review their test results. An employee can re-take a test if they do not pass. 

However, an employee (or administrator) cannot change test results; the 

MyNetLearning transcript would reflect that the test had been re-taken.
5.

“45. Again, I have to go through this process myself, so I know 

exactly what Ms. Herrera would have had to do. Additionally, I have 

administrator level access to CNS’s MyNetLearning system. Every 

employee is presented with a test regarding the CNS handbook every time 

it is updated.

“46. CNS did not update the employee handbook in 2017. 

However, throughout 2017 Ms. Herrera continued to periodically log-in to 

MyNetLearning to complete other CNS training courses.

“47. In 2018, CNS updated the employee handbook. Ms. Herrera 

completed the training course on the 2018 employee handbook on 

September 9, 2018, along with other CNS training courses. . . . A true and 

correct copy of CNS’s 2018 employee handbook is attached hereto as 

Exhibit F.

“48. To complete the ‘CNS Employee Handbook-CA.18’ training 

course, each employee had to take a test. A true and correct copy of the test 

questions and possible answers is attached hereto as Exhibit G.

“49. Ms. Herrera scored 100% on the test for this training module. 

Thus, she answered ‘yes’ to question 8, i.e. she answered ‘yes’ when 

presented with the statement ‘I acknowledge and agree that this Handbook 

contains an Arbitration Agreement and I agree that my employment, and 

any disputes arising out of that employment shall be resolved by binding 

arbitration as provided in this Handbook.’

“50. Throughout 2018 Ms. Herrera continued to log-in to 

MyNetLearning to complete required CNS trainings, as well as the CNS 

training she needed to promote to a ‘Senior Rehabilitation Technician’ 

position.

“51. In mid-2019, CNS again updated the employee handbook. 

Ms. Herrera completed the training course on the 2019 employee handbook 

on September 28, 2019. . . . A true and correct copy of CNS’s 2019

employee handbook is attached hereto as Exhibit H.

“52. To complete the ‘CNS Employee Handbook-CA.19’ training 

course, each employee had to take a test using MyNetLearning. A true and 

correct copy of the test questions and possible answers is attached hereto as 

Exhibit I.

“53. Ms. Herrera scored 100% on the test for this training course. 

Thus, she answered ‘yes’ to question 8, i.e. she answered ‘yes’ when 
6.

presented with the statement ‘I acknowledge and agree that this Handbook 

contains an Arbitration Agreement and I agree that my employment, and 

any disputes arising out of that employment shall be resolved by binding 

arbitration as provided in this Handbook.’

“54. In mid-2020, CNS again updated the employee handbook. 

Ms. Herrera completed the MyNetLearning training course on the 2020 

employee handbook on September 16, 2020. . . . A true and correct copy of 

CNS’s 2020 employee handbook is attached hereto as Exhibit J.

“55. To complete the ‘CNS Employee Handbook-CA.20’ training 

course, each employee had to take a test using MyNetLearning. A true and 

correct copy of the test questions and possible answers is attached hereto as 

Exhibit K.

“56. Ms. Herrera scored 100% on the test for this training course. 

Thus, she answered ‘yes’ to question 8, i.e. she answered ‘yes’ when 

presented with the statement ‘I acknowledge and agree that this Handbook 

contains an Arbitration Agreement and I agree that my employment, and 

any disputes arising out of that employment shall be resolved by binding 

arbitration as provided in this Handbook.’

“57. Altogether, Ms. Herrera electronically agreed to submit any 

disputes arising out of her employment to binding arbitration on four 

separate occasions using MyNetLearning.

“58. Ms. Herrera did not opt-out of any of the arbitration 

agreements.

“59. Accepting the arbitration agreement is not a condition of 

employment with CNS. The opt-out provision is in place so that employees 

who do not want to be bound by the arbitration agreement can in-fact opt 

out. At least one employee that I can think of has done so, and CNS has 

not taken any retaliatory actions against that person.” (Fn. omitted.) 

Exhibit C of Bennett’s declaration was a 14-page document titled “Transcript [¶]

Centre for Neuro Skills.” At the top of the first 13 pages were CNS’s logo and the 

following information: “Learner Name: Herrera, Priscilla”; “EmployeeID: 

5GREKBQFQ”; and “Badge Number: 000101558.” The footer of each page read: 

“© 1998-2022. HealthcareSource HR, Inc. All Rights Reserved.” According to this 

document, between June 17, 2017, and September 7, 2021, Herrera took 379 courses. In 
7.

particular, she earned a “Grade” of “100” in “CNS Employee Handbook-CA.16” (taken 

on June 17, 2016); “CNS Employee Handbook-CA.18” (taken on September 9, 2018); 

“CNS Employee Handbook-CA.19” (taken on September 28, 2019); and “CNS 

Employee Handbook-CA.20” (taken on September 16, 2020). 

Exhibits D, F, H, and J of Bennett’s declaration were CNS’s October 2016 

employee handbook, July 2018 employee handbook, June 2019 employee handbook, and 

August 2020 employee handbook, respectively. Each version contained an “Arbitration 

Agreement,” which provided the following terms (among others): (1) with limited 

exceptions, “[t]his Arbitration Agreement shall apply to any claim or dispute (including 

claims that may be accrued but not yet asserted) regarding or arising out of the 

employee’s employment with Company or termination/separation from employment”; 

(2) “Employee and Company agree to submit any Claims to binding arbitration pursuant 

to the provisions of the Federal Arbitration Act 9 U.S.C. Section 1, et seq., if applicable, 

or the provisions of Title 9 of Part III of the California Code of Civil Procedure, 

commencing at Section 1280 et seq. or any successor or replacement statutes if the 

Federal Arbitration Act does not apply to employee’s employment”; and (3) with limited 

exceptions, “Employee and Company agree that arbitration shall be the exclusive forum 

for resolving all Claims.” 

In addition, each version of the handbook contained a “HANDBOOK RECEIPT 

AND ACKNOWLEDGMENT” form, which read in part:

“I acknowledge that I have received and will read the [CNS] Employee 

Handbook within seven (7) days of my receipt of it, and I will become 

familiar with its terms. I agree that if I do not understand or agree with any 

provision of the handbook, I will discuss the provision with my supervisor 

or a member of the Human Resources Department within ten (10) days 

from the signing of this acknowledgment. I agree that it is not a binding 

contract, but a set of guidelines for the implementation of personnel 

policies. I understand that CNS may modify any of the provisions of the 

handbook at any time.” 
8.

“I acknowledge and agree that this Handbook contains an Arbitration 

Agreement and I agree that my employment, and any disputes arising out 

of that employment shall be resolved by binding arbitration as provided in 

this Handbook. An Employee may submit a form stating that the Employee 

wishes to opt out and not be subject to the Arbitration Agreement. The 

Employee must submit a signed and dated ‘Dispute Resolution Agreement 

Opt-Out Form’ that can be obtained from the Company’s HR Department 

. . . . In order to be effective, the signed and dated Opt-Out Form must be 

returned to Company within 30 days of the Employee’s receipt of this 

Agreement. . . . Should an Employee not opt out of this Agreement within 

30 days of the Employee’s receipt of this Agreement, continuing the 

Employee’s employment constitutes mutual acceptance of the terms of this 

Agreement by Employee and the Company. An Employee has the right to 

consult with counsel of the Employee’s choice concerning this 

Agreement.”1, 2 

Exhibits E, G, I, and K of Bennett’s declaration were “Questions, Answers, and 

Results [¶] Centre for Neuro Skills” for the “CNS Employee Handook-CA.16” test,

“CNS Employee Handook-CA.18” test, “CNS Employee Handook-CA.19” test, and 

“CNS Employee Handook-CA.20” test, respectively. The footer of each page read: 

“© 2022 symplr. All rights reserved.”3 Question 7 of the “CNS Employee HandookCA.16” test read in part:

“Question: . . . [¶] . . . [¶] I acknowledge and agree that this Handbook 

contains an arbitration provision and I agree that my 

employment, and any disputes arising out of that employment 

shall be resolved by binding arbitration as provided in this 

Handbook. [¶] . . . [¶]

1 The July 2018, June 2019, and August 2020 versions added the following 

language:

“Any employee who has previously signed and accepted any previous 

version of the Company’s Arbitration provision will be bound by that prior 

version if the employee elects to ‘opt out’ of this current version.” 

2 At the bottom of the form are blank lines for “Employee Signature,” “Print 

Name,” and “Date.” 

3

In her declaration, Bennett averred MyNetLearning was “recent[ly] renamed 

‘Symplr’, but the processes are the same.” 
9.

“Possible answers: (correct marked with ***)

“1: Yes *** . . . .

“2: No . . . .” 

Question 8 of the “CNS Employee Handbook-CA.18,” “CNS Employee HandookCA.19,” and “CNS Employee Handook-CA.20” tests read:

“Question: I acknowledge and agree that this Handbook contains an 

Arbitration Agreement and I agree that my employment, and 

any disputes arising out of that employment shall be resolved 

by binding arbitration as provided in this Handbook. An 

Employee may submit a form stating that the Employee wishes 

to opt out and not be subject to the Arbitration Agreement. The 

Employee must submit a signed and dated ‘Dispute Resolution 

Agreement Opt-Out Form’ that can be obtained from the 

Company’s HR Department . . . . In order to be effective, the 

signed and dated Opt-Out Form must be returned to Company 

within 30 days of the Employee’s receipt of this 

Agreement. . . . Should an Employee not opt out of this 

Agreement within 30 days of the Employee’s receipt of this 

Agreement, continuing the Employee’s employment constitutes 

mutual acceptance of the terms of this Agreement by Employee 

and the Company. An Employee has the right to consult with 

counsel of the Employee’s choice concerning this Agreement. 

NOTE: Any employee who has previously signed and 

accepted any previous version of the Company’s Arbitration 

provision will be bound by that prior version if the employee 

elects to ‘opt out’ of this current version.

“Possible answers: (correct marked with ***)

“1: True *** . . . .

“2: False . . . .” 

On December 2, 2022, Herrera filed her opposition to defendants’ motion. 

Among other things, she argued the motion must be denied because defendants “failed to 

meet their burden in establishing any agreement whatsoever was entered by the Parties.” 

Herrera asserted:
10.

“By simply answering ‘yes’ to an employee handbook test, on 

questions about the employee handbook containing an arbitration provision, 

without providing any proof of any type of signature, written or electronic, 

much less any verification of such signature, is insufficient to compel the 

case to arbitration.”4 

In an accompanying declaration, Herrera averred in part:

“3. I do not recall ever receiving a copy of the Employee 

Handbook. Nor did I ever sign an acknowledgement that I received the 

Employee Handbook.

“4. I do not recall ever receiving an arbitration agreement with 

CNS, nor do I recall ever consenting to be bound by any arbitration 

agreement.

“5. At no point during my employment with CNS, did anyone tell 

me anything about an arbitration agreement or that I was waiving away any 

rights, including my rights for a jury trial.

“6. At no time during my employment with CNS was I told that I 

could negotiate the terms of any of the documents in the employee 

handbook, including any arbitration agreement.

“7. At no time during my employment with CNS was I told that I 

could opt-out of the arbitration agreement.

“8. At no time during my employment with CNS, do I recall 

agreeing to arbitrate my claims against Defendants or waive my right to a 

jury trial.

“9. During my employment with CNS, I was never given time to 

review, nor the opportunity to opt-out of any arbitration agreement.

“10. I do not recall any contents of the training quizzes on the 

employee handbook. Also, I do not recall ever reading the quiz questions 

regarding the arbitration agreement in the handbook.

“11. I was surprised to hear that CNS claims I agreed to an 

agreement that binds me to arbitration by answering ‘yes’ to certain 

training quiz questions. I did not understand what the term ‘arbitration’ 

4 Herrera filed objections to Bennett’s declaration, but the record does not indicate 

the court ruled on them.
11.

meant at the time I was required to complete the training quizzes and I do 

not recall this term being mentioned or explained to me by anyone 

representing CNS during my employment.

“12. No employee or representative of CNS told me that I could 

hold off on answering any of the quiz questions until after I consulted with 

an attorney.

“13. No employee or representative of CNS told me that I could 

hold off on answering any of the quiz questions until after I reviewed or 

understood all of the questions.

“14. No employee or representative of CNS told me that it was 

permissible to answer any of the training questions ‘incorrectly.’ In fact, it 

was my understanding that I was required to score 100% on the quizzes in 

order to maintain my employment with Defendant.

“15. If I had understood what an arbitration agreement was and 

that I was being asked to agree to one, then I would not have answered 

‘yes’ to those quiz questions. If I had been told that there was an opt-out 

procedure available, then I would have completed the opt-out form.” 

On December 8, 2022, defendants filed their reply to Herrera’s opposition. 

Among other things, they argued Herrera “electronically agreed that she would be bound 

by the arbitration agreement contained in the 2016, 2018, 2019, and 2020 employee 

handbooks” and “did not opt out of any of these . . . Arbitration Agreements.” 

Defendants added:

“[A]lthough Ms. Herrera states that she does not remember the Arbitration 

Agreements [citation], she pointedly avoids challenging CNS’s evidence 

that she used a unique login and password to regularly acknowledge 

documents via the MyNetLearning program. Instead, she implicitly admits 

she took the quizzes and answered the questions, although she no longer 

recalls the content of those quizzes. [Citation.]

“● Ms. Herrera does not deny that she received MyNetLearning 

credentials while she worked at CNS;

“● Ms. Herrera does not deny that during the four years she worked 

for CNS she repeatedly logged in to MyNetLearning to complete 

CNS training modules.
12.

“● Ms. Herrera does not claim that she ever shared her 

MyNetLearning password with anyone else.

“● Ms. Herrera does not deny that she completed the training 

module on the various CNS employee handbooks, and that she 

always answered ‘yes’ when presented with the statement ‘I 

agree that my employment, and any disputes arising out of that 

employment shall be resolved by binding arbitration as provided 

in this Handbook. . .’ She simply claims she did not understand 

what she was answering ‘yes’ to. [Citation.]

“● Ms. Herrera does not claim that she opted out of any of the 

Arbitration Agreements, she simply claims that if someone had 

explained it to her she would have opted out. [Citation.] Again, 

this implicitly admits that she answered ‘yes’ to the questions at 

issue, and did not opt out.

“Pursuant to California Civil Code §1633.9, any ‘act’ of Ms. Herrera is 

sufficient to constitute an electronic signature, and CNS can show in any 

manner that an electronic record was her ‘act’. CNS’s declarant 

meticulously laid out the foundation as to how Ms. Herrera (and only Ms. 

Herrera) on four separate occasions ‘acted’ to agree to the Arbitration 

Agreement. As set forth above, Ms. Herrera has submitted no evidence 

showing these electronic records were not her ‘act’, other than her 

statement that—several years later—she does not specifically remember 

doing it. . . .” 

A hearing was held on December 15, 2022. At the outset, the superior court 

indicated its tentative ruling was to deny the motion because defendants “failed to 

demonstrate the existence of an executed arbitration agreement.” Defendants’ attorney 

maintained:

“The plaintiff here on four separate occasions electronically acknowledged 

her employment and disputes arising out of it would be governed by an 

arbitration agreement, and . . . she hasn’t disputed that she did that. She’s 

disputed the effects. She’s disputed that she didn’t understand what she 

was doing. She’s disputed that no one explained it to her, but she hasn’t 

disputed that she electronically clicked on the question that said yes, do you 

agree to this. And the last three times she did that in 2018, 2019 and 2020, 

it explicitly gave her the option to opt out of that. It told her the process to 

go through if she wanted to opt out of that and, as our declarant submitted, 

avail herself of that opportunity.
13.

“The exhibit we submitted with her transcript of all her trainings that 

she took while she was at CNS indicated that she routinely used this 

process throughout the four years she worked there. It was something very 

routine. This is how most of her training was conducted, was online on her 

own time, and simply because it was online, it doesn’t lessen its ability to 

be a binding contract. Under California law we just have to show that it 

was her act, and any act of hers would be sufficient to constitute an 

electronic signature for California law.

“So simply by clicking yes – since we have shown that she was the 

one who clicked yes, and she very pointedly does not deny that she was the 

one who clicked yes on . . . the statement ‘I acknowledge and agree the 

handbook contains an arbitration agreement,’ et cetera, et cetera, under 

California law on the electronic signatures that is sufficient, binding 

signature, binding agreement.” 

Herrera’s attorney countered:

“There’s just no unique identifier that links the test where my client 

purported acknowledge/acceptance of the arbitration agreement to plaintiff. 

That’s the – that’s the long and the short of it.” 

The court agreed with Herrera’s attorney and denied the motion. An “ORDER 

DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION” was filed 

December 16, 2022. (Boldface omitted.) 

Defendants appealed. (Code Civ. Proc., § 1294, subd. (a) [order denying request 

to compel arbitration is appealable].) In February 2023, defendants’ attorney filed a civil 

case information statement on mandatory Judicial Council form APP-004. Item 2 of 

Part II of the form includes a box followed by “This appeal is entitled to calendar 

preference/priority on appeal (cite authority).” Defendants’ attorney left the item blank. 

(See Cal. Rules of Court, rule 8.100(g) [appellant must serve and file a completed form 

APP-004].) A completed form would have a marked box and a cite to Code of Civil 

Procedure section 1291.2. Under that section, “[a]rbitration proceedings are entitled to 

calendar preference in all courts.” (Woolls v. Superior Court (2005) 127 

Cal.App.4th 197, 204, fn. 4; see Hedges v. Carrigan (2004) 117 Cal.App.4th 578, 

582.) In April, June and November of 2023, defendants’ attorney filed applications for 
14.

extension of time to file brief stating: “(6) This case is not entitled to priority.” The 

statements contradict Code of Civil Procedure section 1291.2, which makes preference 

mandatory. (See Bus. & Prof. Code, § 6068, subd. (d) [attorney’s duty regarding false 

statements of fact or law]; Rules Prof. Conduct, rule 3.3(a)(1) [duty of candor].) 

In December 2023, defendants’ reply brief was filed and, as a result, this appeal 

was fully briefed. In January 2024, this court notified the parties that, if not requested, 

oral argument would be deemed waived. Both sides requested argument. In February 

2024, we notified the parties that oral argument was set for March 7, 2024. 

DISCUSSION

I. Motion to compel arbitration

Generally, “[o]n petition of a party to an arbitration agreement alleging the 

existence of a written agreement to arbitrate a controversy and that a party to the 

agreement refuses to arbitrate that controversy, the court shall order the petitioner and the 

respondent to arbitrate the controversy if it determines that an agreement to arbitrate the 

controversy exists . . . .” (Code Civ. Proc., § 1281.2.) “Thus, when presented with a 

motion to compel arbitration, the court’s first task is to determine whether the parties 

have entered into an agreement to arbitrate their claims.” (Ramos v. Westlake Services 

LLC (2015) 242 Cal.App.4th 674, 685; see Engalla v. Permanente Medical Group, Inc. 

(1997) 15 Cal.4th 951, 972 [“[T]he trial court sits as a trier of fact, weighing all the 

affidavits, declarations, and other documentary evidence, as well as oral testimony 

received at the court’s discretion, to reach a final determination.”].) “Courts ‘apply 

general California contract law to determine whether the parties formed a valid 

agreement to arbitrate their dispute.’ [Citation.] ‘General 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 contract[].” ’ [Citation.] ‘Contract law also requires the parties agree 

to the same thing in the same sense.’ [Citation.]” (Ramos v. Westlake Services LLC, 

supra, at p. 685.)
15.

“The burden of persuasion is always on the moving party to prove the existence of 

an arbitration agreement with the opposing party by a preponderance of the evidence” 

(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164 (Gamboa)), but 

“the burden of production may shift in a three-step process” (id. at p. 165). “First, the 

moving party bears the burden of producing ‘prima facie evidence of a written agreement 

to arbitrate the controversy.’ ” (Ibid., quoting Rosenthal v. Great Western Fin. Securities 

Corp. (1996) 14 Cal.4th 394, 413.) “If the moving party meets its initial prima facie

burden and the opposing party does not dispute the existence of the arbitration agreement, 

then nothing more is required for the moving party to meet its burden of persuasion.” 

(Gamboa, supra, at p. 165.) “If the moving party meets its initial prima facie burden and 

the opposing party disputes the agreement, then in the second step, the opposing party 

bears the burden of producing evidence to challenge the authenticity of the agreement.” 

(Ibid.) “If the opposing party meets its burden of producing evidence, then in the third 

step, the moving party must establish with admissible evidence a valid arbitration 

agreement between the parties.” (Ibid.) “There is a strong public policy favoring 

contractual arbitration, but that policy does not extend to parties who have not agreed to 

arbitrate.” (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 787.)

II. Standard of review

“ ‘ “ ‘There is no uniform standard of review for evaluating an order denying a 

motion to compel arbitration.’ ” ’ [Citation.]” (Gamboa, supra, 72 Cal.App.5th at 

p. 166.)

“We review an order denying a petition to compel arbitration for abuse of 

discretion unless a pure question of law is presented. In that case, the order is reviewed 

de novo.” (Espejo v. Southern California Permanente Medical Group (2016) 246 

Cal.App.4th 1047, 1056–1057; see, e.g., Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 

747, 755–756 [“As to the existence of an agreement [to arbitrate], we review de novo the 

trial court’s ruling that plaintiffs’ evidence was sufficient to create a factual dispute 
16.

shifting the burden of production back to [movant].”]; Espejo v. Southern California 

Permanente Medical Group, supra, at pp. 1056–1057, 1060 [whether movant’s evidence 

satisfies initial burden of production presents legal question subject to de novo review].)

“Where the trial court’s ruling is based on a finding of fact, we review the decision 

for substantial evidence. [Citations.] Under this deferential standard, ‘ “[A]ll factual 

matters will be viewed most favorably to the prevailing party [citations] and in support of 

the judgment.” ’ [Citations.]” (Trinity v. Life Ins. Co. of North America (2022) 78 

Cal.App.5th 1111, 1121 (Trinity).)

“When . . . the court’s order denying a motion to compel arbitration is based on 

the court’s finding that petitioner failed to carry its burden of proof, the question for the 

reviewing court is whether that finding is erroneous as a matter of law. [Citations.] 

‘ “Specifically, the question becomes whether the appellant’s evidence was 

(1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave 

no room for a judicial determination that it was insufficient to support a finding.[’] ” ’ 

[Citations.]” (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066–1067

(Fabian).) “For this reason, ‘ “[w]here . . . the judgment is against the party who has the 

burden of proof, it is almost impossible for him to prevail on appeal by arguing the 

evidence compels a judgment in his favor. That is because unless the trial court makes 

specific findings of fact in favor of the losing [party], we presume the trial court found 

the [party’s] evidence lacks sufficient weight and credibility to carry the burden of proof. 

[Citations.] We have no power on appeal to judge the credibility of witnesses or to 

reweigh the evidence.” ’ [Citation.] [‘]The appellate court cannot substitute its factual 

determinations for those of the trial court; it must view all factual matters most favorably 

to the prevailing party and in support of the judgment. [Citation.] “ ‘All conflicts, 

therefore, must be resolved in favor of the respondent.’ [Citation.]” [Citation.]’ 

[Citation.]” (Id. at p. 1067.)
17.

III. Analysis

On appeal, defendants ask us to “reverse the trial court’s decision to deny their 

motion to compel arbitration.” They opine—and we agree—“the trial court’s remarks at 

the hearing shed little light on whether it was denying the motion on the grounds that 

[they] failed to meet [their] initial burden” “or whether it felt that Ms. Herrera had shifted 

the burden back to [defendants] with her declaration.” For her part, Herrera believes the 

court found defendants’ evidence was insufficient to shift the burden of production. 

Defendants make three contentions. First, they “met [their] initial burden to 

establish the existence of an agreement to arbitrate.” Second, Herrera “did not offer 

sufficient admissible evidence to create a factual dispute regarding whether she agreed to 

arbitrate claims against CNS.” Third, defendants “met [their] ultimate burden to establish 

that Ms. Herrera agreed to arbitrate her claims against CNS.” 

a. Defendants satisfied their initial burden of production.

Defendants filed a motion to compel arbitration and Bennett’s declaration. 

Attached to the declaration were four versions of CNS’s employee handbooks, all of 

which contained an arbitration agreement as well as a form acknowledging receipt of the 

handbook, acknowledging the handbook’s contents included the arbitration agreement, 

and agreeing to submit employment-related disputes to binding arbitration. (See Cal. 

Rules of Court, rule 3.1330 [petition to compel arbitration must either state verbatim 

arbitration provisions of written contract or include physical or electronic copy of said 

contract].)

None of the provided handbooks or forms were signed—manually, electronically, 

or otherwise—by anyone, let alone Herrera. (Cf. Fabian, supra, 42 Cal.App.5th at 

pp. 1064–1065 [contract purportedly bore employee’s electronic signature and initials].) 

While “[t]he party seeking arbitration can meet its initial burden by attaching to the 

petition a copy of the arbitration agreement purporting to bear the respondent’s signature” 

(Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543–544), the lack of 
18.

a signed agreement is not necessarily fatal at this stage. A party’s signature may evince 

that party’s acceptance of an agreement (see Pinnacle Museum Tower Assn. v. Pinnacle 

Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“A party’s acceptance of an 

agreement to arbitrate may be express, as where a party signs the agreement.”]), but it is 

not the exclusive means of proof. (See, e.g., ibid. [“A signed agreement is not necessary, 

however, and a party’s acceptance may be implied in fact [citation] or be effectuated by 

delegated consent.”].)5 Here, to establish Herrera’s acceptance, defendants relied upon 

documentation purporting to show (1) during the course of her employment, Herrera took 

four online courses testing her knowledge of the employee manual; (2) one of the test 

questions expressly asked Herrera to acknowledge the handbook’s contents included the 

arbitration agreement and agree to submit employment-related disputes to binding 

arbitration; (3) in three versions of the aforementioned test question, Herrera was advised 

about the opt-out procedure and—should she fail to adhere to said procedure—her 

continuing employment constituted acceptance of the arbitration agreement; and (4) by 

selecting “Yes” or “True” in response to the question, Herrera assented. (See Gamboa, 

supra, 72 Cal.App.5th at p. 165 [“For this step, ‘it is not necessary to follow the normal 

procedures of document authentication.’ ”].) Defendants produced prima facie evidence 

of an arbitration agreement.

b. Herrera satisfied her burden of production.

In a declaration accompanying her opposition to defendants’ motion, Herrera 

averred she did not recall (1) “ever receiving a copy of the Employee Handbook”; 

(2) “ever receiving an arbitration agreement with CNS”; (3) “ever consenting to be bound 

5 As mentioned, at the December 15, 2022 hearing, the superior court indicated its 

tentative ruling was to deny defendants’ motion because they “failed to demonstrate the 

existence of an executed arbitration agreement.” (Italics added.) Thus, to the extent the 

court believed arbitration cannot be compelled absent a signed agreement, it was 

mistaken.
19.

by any arbitration agreement”; (4) “agreeing to arbitrate [her] claims against Defendants 

or waive [her] right to a jury trial”; (5) “any contents of the training quizzes on the 

employee handbook”; and (6) “ever reading the quiz questions regarding the arbitration 

agreement in the handbook.” She added “[i]f [she] had understood what an arbitration 

agreement was and that [she] was being asked to agree to one, then [she] would not have 

answered ‘yes’ to those quiz questions” and “[i]f [she] had been told that there was an 

opt-out procedure available, then [she] would have completed the opt-out-form.” This 

testimony sufficiently challenged the notion she accepted the agreement to arbitrate. (See 

Trinity, supra, 78 Cal.App.5th at pp. 1124–1125 [“[I]n the absence of a signed agreement 

(either handwritten or electronic), [opposing party]’s testimony that she did not recall 

agreeing to arbitrate by electronically clicking a ‘Done’ box, coupled with her declaration 

that she would not have accepted the job . . . had she known of the arbitration clause . . . , 

was sufficient to carry her burden in opposing a motion to compel.” (fn. omitted)]; see 

also Gamboa, supra, 72 Cal.App.5th at p. 167 [the plaintiff “likewise met her burden on 

the second step by filing an opposing declaration, saying she did not recall the agreement 

and would not have signed it if she had been aware of it”].)

c. The evidence did not compel a finding in defendants’ favor as a matter 

of law.

As noted, defendants alleged Herrera accepted the agreement to arbitrate 

because—on four separate occasions—she answered “Yes” or True” to an online test 

question asking her to acknowledge such an agreement was contained in the employee 

handbook and to agree to submit employment-related disputes to binding arbitration. 

Because Herrera declared she could not recall this question, defendants “had the burden 

of proving by a preponderance of the evidence that the electronic signature was authentic 

[citation], that is, it was what [defendants] claimed it was: ‘the act of’ [Herrera].” (Ruiz 

v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846 (Ruiz).) 
20.

“[A]ny writing must be authenticated before the writing, or secondary evidence of 

its content, may be received in evidence.” (Ruiz, supra, 232 Cal.App.4th at p. 843.) 

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a 

finding that it is the writing that the proponent of the evidence claims it is or (b) the 

establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) 

“An electronic record or electronic signature is attributable to a person if it was the act of 

the person. The act of the person may be shown in any manner, including a showing of 

the efficacy of any security procedure applied to determine the person to which the 

electronic record or electronic signature was attributable.” (Civ. Code, § 1633.9,

subd. (a).)

In her declaration supporting the motion to compel arbitration, Bennett averred 

Herrera “electronically agreed to submit any disputes arising out of her employment to 

binding arbitration on four separate occasions using MyNetLearning.” MyNetLearning 

was a “cloud-based service” that all CNS employees must access to complete online 

training courses (e.g., periodic employee handbook tests). To access MyNetLearning, 

employees would either visit MyNetLearning’s website or “login from their ADP 

[WorkforceNow] page.” WorkforceNow was CNS’s “online system for certain HR 

services” that “automatically generated” “[e]mployee login credentials to 

MyNetLearning” “shortly after the employee is hired.” “During the first log-in, the 

employee must choose a unique password.” CNS was not given employees’ 

WorkforceNow credentials or passwords and “advise[d] employees not to share their 

passwords with anyone.” (See Trinity, supra, 78 Cal.App.5th at p. 1116 [employees 

logged into website using unique username and password to “ ‘specifically acknowledge 

their agreement to be bound by’ ” handbook’s arbitration provision “ ‘by marking the box 

next to “acknowledgment,” and then affirmatively clicking “Done” ’ ”]; Ruiz, supra, 232 

Cal.App.4th at p. 844 [“[E]ach employee is required to log into the company’s HR 
21.

system, using his or her ‘unique login ID and password,’ to review and sign the employee 

acknowledgment form.”].)

According to Bennett, MyNetLearning “can generate a transcript for each 

employee, showing what MyNetLearning courses the employee has completed, and the 

grade the employee received on the associated test.” Exhibit C of her declaration was a 

14-page document titled “Transcript [¶] Centre for Neuro Skills,” which: (1) bore 

“Learner Name: Herrera, Priscilla”; “EmployeeID: 5GREKBQFQ”; and “Badge 

Number: 000101558”; and (2) indicated “Herrera, Priscilla” earned a “Grade” of “100” 

in “CNS Employee Handbook-CA.16” (taken on June 17, 2016); “CNS Employee 

Handbook-CA.18” (taken on Sept. 9, 2018); “CNS Employee Handbook-CA.19” (taken 

on Sept. 28, 2019); and “CNS Employee Handbook-CA.20” (taken on Sept. 16, 2020). 

(Cf. Trinity, supra, 78 Cal.App.5th at p. 1118 [autogenerated acknowledgement form 

containing employee’s name and identification number].) Exhibits E, G, I, and K of 

Bennett’s declaration were “Questions, Answers, and Results [¶] Centre for Neuro 

Skills” for these tests, respectively, all of which showed (1) a question asking the tester to 

acknowledge the handbook’s contents included the arbitration agreement and agree to 

submit employment-related disputes to binding arbitration; and (2) the correct answer to 

said question was “Yes” (for the 2016 version) or “True” (for the 2018, 2019, and 2020 

versions). (Cf. Fabian, supra, 42 Cal.App.5th at p. 1065 [signature box at end of contract 

contained plaintiff’s “printed electronic signature,” date, 15-digit alphanumeric character, 

and words “DocuSigned by” and “Identity Verification Code: ID Verification 

Complete”].) 

We find the foregoing evidence was “not ‘ “ ‘of such a character and weight as to 

leave no room for a judicial determination’ ” ’ that [defendants] failed to establish that 

[Herrera] electronically signed the Contract.” (Fabian, supra, 42 Cal.App.5th at 

p. 1068.) Bennett’s declaration did not detail how the transcript and tests were 

“generated, stored or retrieved, including who had access to the records and whether they 
22.

could be manually created or altered.” (Trinity, supra, 78 Cal.App.5th at p. 1125.) 

“[T]here was no testimony that [Herrera]’s own actions were the exclusive way [the 

transcript] bearing her credentials could be created.” (Ibid.; see Fabian, supra, at p. 1070 

[“[Declarant] did not suggest how the electronic signature could have only been placed 

on the Contract by [the plaintiff].”].) Hence, a court could find “a critical gap in the 

evidence supporting the petition” (Ruiz, supra, 232 Cal.App.4th at p. 844) and we cannot 

conclude the court’s order denying defendants’ motion to compel arbitration was 

erroneous as a matter of law.

DISPOSITION

The order is affirmed. Costs on appeal are awarded to plaintiff and respondent 

Priscilla Herrera.

DETJEN, Acting P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.