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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DAMON TULIP, Appellant,

v. SERVICE CORPORATION INTERNATIONAL, SCI FUNERAL AND CEMETERY PURCHASING COOPERATIVE, INC., SCI WESTERN MARKET SUPPORT CENTER, L.P. a/k/a SCI WESTERN MARKET SUPPORT CENTER, INC., SCI WASHINGTON FUNERAL SERVICES, INC., GREENWOOD MEMORIAL PARK CEMETERY & FUNERAL HOME, JANE D. JONES, THOMAS RYAN, Respondents. No. 69306-9-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: April 21, 2014 Schindler, J. — Damon Tulip filed a petition to compel arbitration of his state law 

### wage claims after the class action wage claim lawsuits were dismissed and over three and one-halfyears after his employment ended. The court dismissed his petition to compel with prejudice. We affirm.
FACTS 

### Service Corporation International (SCI) owns funeral homes nationwide. In 

### September 2004, SCI Washington Funeral Services Inc. hired Damon Tulip towork atNo. 69306-9-1/2 

### Greenwood Memorial Park Cemetery and Funeral Home in Renton as a FamilyService Counselor and Community Service Counselor. Tulip signed a "Principles of 

### Employment" agreement (Agreement). The Agreement states that all disputes relating to any aspect of Tulip's employment with SCI shall be resolved through binding 

### arbitration, and any claim must be presented inwriting "within one year of the date the 

### claiming party knew or should have known of the facts giving rise to the claim." The Agreement states, in pertinent part: 1. Matters Subject To Arbitration. Employee and the Company agree 

### that, except forthe matters identified inSection 2 below and except as 

### otherwise provided by law, alldisputes relating to any aspect of 

### Employee's employmentwith the Company shall be resolved bybinding arbitration. This includes, but is not limited to, any claims against the 

### Company, its affiliates or their respective officers, directors, employees, or agents for breach of contract, wrongful discharge, defamation, misrepresentation, and emotional distress, as well as any disputes 

### pertaining to the meaning or effect of thisAgreement. The arbitration shall be conducted in accordance with the procedures attached hereto as 

### Exhibit "A." This agreementto arbitrate shall cover disputes arising both before and after the execution of this document, except to the extent that 

### any litigation has already been filed as of the date hereof. 2. Exclusions. It is expressly agreed and understood that this 

### Agreement shall notgovern the following: (1) any claimsbrought under federal discrimination laws (including TitleVII of the Civil Rights Act) or 

### any otherfederal laws administered bythe Equal Employment Opportunity Commission, (2) claims for workers' compensation or unemployment benefits, or (3) claims brought to enforce any noncompetition or confidentiality agreement which may exist between the parties. 3. Notification/Timeliness Of Claims. Any claim which either party has against the other, other than a claim based on employment discrimination, must be presented in writing bv the claiming party to the other within one year ofthe date the claiming party knew or should have known ofthe facts giving rise to the claim. Otherwise, the claim shall be deemed waived and forever barred even ifthere is a federal or state statute of limitations which 

### would have given more time to pursue the claim..

. . NOTICE TO EMPLOYEE: BY SIGNING THIS AGREEMENT, YOU ARE AGREEING TO HAVE ANY AND ALLDISPUTES BETWEEN YOU 

### AND YOUR COMPANY (EXCEPT THOSE SPECIFICALLY EXCLUDED IN SECTION 2 ABOVE AND THOSE OTHERWISE EXCLUDED BYNo. 69306-9-1/3 APPLICABLE LAW, IF ANY) DECIDED BY BINDING ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A JURY OR COURT TRIALTM Tulip worked at SCI until September 2007. In December 2007, a former SCI employee on behalfof a national class of SCI employees, including Tulip, filed a lawsuit in California state court against SCI, Bryant, et al. v. Service Corp. International, et al.. No. RG 07359593 (Alameda County Super. 

### Ct.).2 The class action lawsuit alleged wage claims under state law. SCI removed the lawsuit to the United States District Court for the Northern District ofCalifornia, Bryant, et al. v. Service Corp. International, et al.. No. 3:08-cv-01190-SI (2008). 

### On January 15, 2008, James Stickle and several other named plaintiffs acting on behalf of a national class of SCI employees, sued SCI in federal court in Arizona 

### alleging violation ofthe Fair Labor Standards Act of1938(FLSA), 29 U.S.C. ch. 8, Stickle, et al. v. SCI Western Market Support Center LP. et. al.. No. 2:08-cv-00083- 

### MHM (D. Ariz.).3 Thelawsuit alleged SCI did not paythe class members for all hours worked and did not payovertime at one and one-halftimes the hourly wage. The suit 

### alsoalleged SCI required pre-approval for overtime pay, deducted meal break hours from pay, and required employees to do "communitywork" without compensation. Stickle soughtdamages in the amount ofplaintiffs' unpaid wages. The court

1 (Some emphasis added) (boldface omitted). 2The defendants in Bryant were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc., SCI Western Market SupportCenterLP akaSCI Western Market Support CenterInc., Jane D. Jones, Thomas Ryan, Gwen Petteway, and Curtis Briggs. 3The defendants in Stickle were SCI, SCI Western MarketSupport Center, SCI Eastern Market SupportCenter, SCI Houston Market SupportCenter, SCI Funeral and Cemetery Purchasing 

### Cooperative Inc., JaneD. Jones, Gwen Petteway, Thomas Ryan, Curtis Briggs, The SCI 401K Retirement Savings Plan, and Julie Douglas. The plaintiffs also alleged claims undertheEmployee Retirement Income Security Act, 29 U.S.C. ch. 18, and theRacketeer Influenced andCorrupt Organizations Act, 18 U.S.C. ch. 96.No. 69306-9-1/4 conditionally certified a class action on the FLSA claim and approximately 1,400 SCI employees opted into the class action lawsuit. On December 14, 2009, Tulip filed a "Consent to Become A Party Plaintiff' in the Stickle lawsuit. The Consent to Become A Party Plaintiff states, in pertinent part: Iconsent to become a "party plaintiff," named, or a representative plaintiffin this action, seeking payment of unpaid wages under Federal or State law, including overtime wages, and related relief against my 

### employer(s) including any individual(s) who may be considered my employer(s), on behalfof myself and otherformer and current employees ofthe employer(s). Iam, or was employed byAlderwoods Group, Inc. and/or Service Corporation International. 

### The parties in the Stickle suitengaged in lengthy discovery on class certification. SCI propounded interrogatories and took approximately 60 depositions. In response to 

### the interrogatories, Tulip states he was not paid forall timeworked because SCI 1. encourag[ed] or required] hourly employees to participate in various community activities (church, Lion Club, Rotary International, Chamber of Commerce, etc.) so as to increase revenue for defendants but not compensating them on an hourly basis for such time spent engaging in community work; .

.. 

### 2. encourag[ed] orrequired] hourly employees to work byselling preneeds policies after hours,.

.. 

### 3. encourag[ed] orrequired] hourly employees to take or teach 

### training mandated by defendants outside oftheirnormal work hours,

... 

### 4. encourag[ed] orrequired] hourly employees to deduct a full meal break from their work hours each day, even when such employees either missed their lunch breaks, or were interrupted during their lunch breaks,.

. . 

### 5. require[ed] pre-approv[al] from management for any overtime hours worked, and refus[ed] to pay hourly employees for overtime hours worked unless the overtime had been pre-approved by defendants;.

.. 

### 6. refus[ed] to allow hourly employees to properly record all overtime hours worked, .

.. pressuring employees to underreport overtime hours worked

.. . ; and 

### 7. fail[ed] to include all remuneration (such as bonuses and commissions) when calculating the regular rate due to hourly employees for payment forovertime hours worked.No. 69306-9-1/5

Aftermore than two and one-halfyears oflitigation inthe Bryant case, the parties 

### stipulated to dismiss the claims of the out-of-state class members, including Tulip. On 

### July 22, 2010, the court entered an order of dismissal of the claims of the out-of-state plaintiffs without prejudice. On October 5, 2010, Craig Emmick on behalfof a class ofWashington 

### employees, including Tulip, filed a lawsuit against SCIin King CountySuperiorCourt, Emmick. et al. v. Service Corp. International, et al.. No. 10-2-35204-0 SEA.4 The 

### Emmick lawsuit against SCI alleged state lawclaims and sought to recoverunpaid 

### wages and unpaid overtime. SCI removed the Emmick lawsuitto the United States District Court for the Western District ofWashington, Emmick. et al. v. Service Corp. International, et al.. No. 2:10-cv-02027-MJP (2010). 

### OnApril 25, 2011,the United States District Courtfor the District ofArizona 

### granted themotion todecertify the class action in Stickle andentered an order dismissing "the claims ofall opt-in plaintiffs," including Tulip. 

### On May 2, 2011, SCI filed a motion todismiss the Emmick lawsuit. SCI argued thattheplaintiffs failed to state a claim for reliefon a number ofgrounds including 

### preemption. While themotion todismiss was pending, theEmmick plaintiffs voluntarily dismissed their claims. The court entered the order of dismissal on May 17. 

### Two dayslater, Tulip sentSCI a "Demand forArbitration" undertheterms ofthe 

### Agreement ofhis claims for unpaid wages, overtime, and othercompensation. SCI did not respond to the demand for arbitration.

"The defendants inEmmickwere SCI, SCI Funeral and Cemetery Purchasing CooperativeInc., 

### SCI Western Market SupportCenter Inc., SCI Washington Funeral Services Inc., JaneD. Jones, Gwen Petteway, and Thomas Ryan.No. 69306-9-1/6 

### On November 15, 2011, Tulipfiled a "Petition to Compel Arbitration" in King 

### County Superior Court. Tulip sought to arbitrate claims "for unpaid overtime and other 

### wages and compensation" under state law.5 SCIfiled an answer asserting the claims were time barred and Tulip waived his rightto arbitration by participating in the prior litigation. 

### SCI filed a motion to dismiss arguing as a matter of law Tulip waived his right to 

### arbitrate and his claims were barred by the statute oflimitations. Tulip filed a motion for summary judgment arguing he was entitled to arbitration. Tulip argued that by 

### participating in the class action lawsuits, he did notwaive the right to arbitrate his state 

### law wageclaims undertheAgreement. In opposition, SCI asserted the undisputed facts established Tulip waived the right to arbitration byparticipating in the Bryant, Stickle, and Emmick class action lawsuits. Insupport, SCI submitted his consent to 

### becomea party plaintiffin the Stickle lawsuit, the Stickle complaint anddocket, Tulip's answers to interrogatories in Stickle, and the complaint and docketin Emmick. The court dismissed the Petition to Compel Arbitration with prejudice. Tulip appeals. ANALYSIS 

### Tulip argues thecourterred by dismissing his petition tocompel arbitration. We review the decision on a motion to compel arbitration and summary judgment de novo.



### 5The petition stated thatthe "relevantstatutes and regulations relating to Tulip's claims include" RCW49.12.020 (providing thatitis unlawful to employ any person "atwages which are notadequatefor 

### theirmaintenance"), RCW49.48.010 (regarding authorized deductions and withholdings from pay), RCW 49.52.050 (providing that making false wage records is amisdemeanor), WAC 296-126-021 (regarding minimumwage calculation for employees receiving commission), WAC 296-126-025 (regarding deductions from final wages), andWAC 296-126-092 (regarding meal and restperiods). 6No. 69306-9-1/7 Hartley v. State. 103 Wn .2d 768, 774, 698 P.2d 77 (1985); Zuver v. Airtouch Commc'ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004); CR 56(c). Waiver ofthe right to arbitrate is governed by federal law. Kinsev v. Bradley, 53 Wn. App. 167, 169, 765 P.2d 1329 (1989). Under federal law, "the ultimate determination ofwaiver is reviewed de novo, as a matter of law." Steele v. Lundgren. 85 Wn. App. 845, 850-51, 935P.2d671 (1997). Waiver ofthe Right to Arbitrate Section 2 ofthe Federal Arbitration Act, 9 U.S.C, is "a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state 

### substantive or procedural policies to the contrary." Moses H. Cone Mem'lHosp. v. Mercury Constr. Corp.. 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). 

### Accordingly, a party opposing arbitration bears a " 'heavy burden'" to show waiver of 

### the right to arbitrate. Steele. 85Wn. App. at 852 (quoting Fisherv. A.G. Becker Paribas Incorporation, 791 F.2d 691, 694 (9th Cir.1986)). 

### To establish waiver of the right to arbitration, the party opposing arbitration must 

### prove (1) knowledge of an existing right to compel arbitration, (2) acts inconsistentwith that right, and (3) prejudiceto the party opposing arbitration. Kinsev, 53 Wn. App. at 

### 169 (citing Letizia v. Prudential BacheSec. Inc., 802 F.2d 1185, 1187 (9th Cir.1986)). " 'The waiver determination necessarily depends upon the facts ofthe particular case 

### and is notsusceptible to bright linerules.'" Steele, 85 Wn. App. at 853 (quoting Cotton

v. Slone. 4 F.3d 176, 179 (2d Cir.1993)). 

### Tulip contends SCI did not meet its heavy burden ofshowing he waived hisright to arbitration. Tulip contends the state law wage claimsare differentthan thefederalNo. 69306-9-1/8 law wage claims asserted in Stickle, and his limited participation in the class action litigation was not inconsistent with his right to arbitration. SCI argues that Tulip's attempt to compel arbitration is an improper attempt to relitigate the same claims and seek the same relief he sought inthe priorunsuccessful class actions. SCI argues Tulip acted inconsistently withthe right to arbitrate under the Agreement by participating in Bryant, Stickle, and Emmick and waiting more than three and one-halfyears after he stopped working for SCI in September 2007 to request arbitration. 1. Knowledge 

### There is no dispute that Tulip signed the agreement to arbitrate inSeptember 2004. "One is presumed to know and understand the contents ofdocuments one 

### signs." Kinsev, 53 Wn. App. at 171 (citing O'Neel v. Nat'l Ass'n ofSec. Dealers. Inc., 667 F.2d 804 (9th Cir. 1982)).6 We conclude Tulip was aware of his rightto arbitrate when he signed the Agreement in September 2004.
2. Acts Inconsistent with Arbitration 

### SCI argues that the undisputed facts establishTulip acted inconsistently with the 

### rightto arbitrate underthe terms oftheAgreement byparticipating in Bryant, Stickle, and Emmick. Tulip claims he did not act inconsistently with the right to arbitrate his state law claims because Stickle involved only federal lawwage claims brought under the FLSA, and because his participation in Sticklewas limited. Whether a party acts 

### inconsistently with the right to arbitrate is a fact-specific inquiry. Steele, 85 Wn. App. at
853. 6Tulip arguesfor thefirst time in his reply briefthat he was nevergiven a copy ofhis arbitration agreement. Wedonotconsideran argument made for thefirsttime in a reply brief. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issue raised for the first time in a reply briefistoo late towarrantconsideration). Further, Tulip presented no evidence tosupportthis assertion. 8No. 69306-9-1/9
SCI contends the record establishes that there is no difference between the claims Tulip unsuccessfully litigated in Bryant. Stickle, and Emmick, and the claims he

now seeks to arbitrate. Tulip claims Washington law is more protective and the FLSA wage claims asserted in Stickle are legally and factually distinct from the state law wage claims he seeks to arbitrate. Tulip's demand for arbitration sought to arbitrate claims "forunpaid overtime and other wages and compensation." The overtime provisions ofthe FLSA and the Washington Minimum Wage Act (MWA), chapter 49.46 RCW, are nearly identical. Compare RCW 49.46.130(1) (providing that except as otherwise provided, an employer must pay his employees "one and one-halftimes the regular rate at which he or she is employed" for "a work week longer than forty hours") wjth 29 U.S.C. § 207 (providing 

### that except as otherwise provided, any employer must pay his employees "one and onehalf times the regular rate at which he is employed" for "a workweek longer than forty 

### hours"). See also Anfinson v. FedEx Ground Package Svs.. Inc., 174 Wn.2d 851, 871, 

### 281 P.3d 289 (2012) (noting MWA is "patterned after the FLSA").7

7The federalcases Tulip relies on are distinguishable. None of these cases involve a plaintiff attempting toarbitrate state law claims despitealready having litigated federal law claims arising out of the same facts and requesting the same relief. See MicroStrateav. Inc. v. Lauricia, 268 F.3d 244, 250 (4th Cir. 2001) (employerdid notwaive itsrighttoarbitrate its employee'sdiscrimination claim by litigating an unrelated trade secrets claim in a previousaction); Doctor'sAssocs.. Inc. v. Distajo, 107 F.3d 126,133 (2nd Cir. 1997) (franchisordid notwaive arbitration of breachofcontractclaim by litigating eviction action where claims did not involve the same "core facts"); Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 327 (5th Cir. 1999)(participation in prior litigation ofnonarbitrable claimsdid notwaive arbitration). Further, ourcases have repeatedly stated that a court's waiverdetermination is based on the facts and circumstances ofindividual cases, not on bright line rules. See Steele, 85 Wn.App. at 853; Hill v. Garda CLNw.. Inc.. 169Wn. App. 685, 691, 281 P.3d 334 (2012) reversed on other grounds by 179Wn.2d 47, 308 P.3d 635 (2013). Tulip also citestwo federal cases for the proposition thatlitigating a class action is not inconsistent with later arbitration of state law claims. Beauperthuv v. 24 Hour Fitness USA. Inc., No. 06-715 SC, 2011 WL 6014438, at *5 (N.D. Cal. Dec. 2. 2011V Manskerv. Farmers Ins. Co. ofWash., No. C10-0511JLR, 2010WL 3699847, at *3 (W.D. Wash. Sept. 14, 2010). Neithercase addresses waiver of arbitration. 9No. 69306-9-1/10 The FLSAand state law wage claims depend on the same facts and seek the

same relief: unpaid overtime and other wages. Both claims relate to Tulip's 

### employment with SCIfrom September 2004 to September 2007. Both claims allege failure to pay overtime wages, regular wages, and wages formissed break and meal times. The complaint in Stickle alleged that SCI violated the FLSA byfailing to pay its 

### employees for all hours worked and did not pay time and one-half for overtime hours. In the alternative, Tulip argues that even ifthe federal and state law wage claims
are not factually and legally distinct, he did not act inconsistently with his right to 

### arbitrate byparticipating in the class actionsbecause hisparticipation was limited. SCI argues the three and one-half-year delayin seeking arbitration and hisinvolvement in the class actions infederal court demonstrate that Tulip did not intend to arbitrate his
claims.

### "Waiver occurs when a party seeking arbitration substantially participates in 

### litigation to a point inconsistentwith an intenttoarbitrate andthis participation results in prejudice to theopposing party." Morewitz v. W. ofEngland Ship Owners Mut. Prot. & Indem. Ass'n, 62 F.3d 1356, 1366 (11thCir.1995). "A partysubstantially invokes the 

### litigation machinery when

... itfiles a lawsuit onarbitrable claims." Lewallen v. Green Tree Servicing. LLC, 487 F.3d 1085, 1090 (8th Cir. 2007). 

### Here, Tulip substantially invoked the litigation machinery. The record establishes 

### Tulip soughtto resolve his wageclaims in court ratherthan seek nonjudicial resolution 

### through arbitration. Further, Tulip's consentto be a named plaintiffspecifically states he
was "seeking payment ofunpaid wages under Federal and State law."

10No. 69306-9-1/11 

### Tulip elected to litigate his wage claims, selecting federal court as his first-choice forum. Tulip affirmatively chose to litigate his wage claims by opting inas a plaintiffto an FLSAclass action, stating, "I consent to become a 'party plaintiff,' named, or 

### representative plaintiffin this action, seeking payment of unpaid wages under Federal or State law, including overtime wages, and related relief." Tulip remained a party in 

### Sticklefor one and one-half years, engaging in discovery and failing to raise the right to arbitrate. Tulip firstmade his demand for arbitration two days after the plaintiffs in Emmickvoluntarily dismissed their wage claims. Tulip's decision to bring claims in federal court and to resort to arbitration only after dismissal of his claims is inconsistent with arbitration. Parlerv. KFC Corp.. 529 F. Supp. 2d 1009, 1015 (D. Minn. 2008); Welborn Clinic v. Medouist. Inc., 301 F.3d 634, 637 (7th Cir. 2002) ("[W]e do not want 

### parties toforum shop, taking a case to the courts and then, ifthings go poorly there, abandoning theirsuitin favor ofarbitration."). Further, the fact thatTulip did not 

### demand SCI participate in arbitration until May 2011 provides someevidence thatTulip elected litigation. River House Dev.. Inc. v. Integrus Architecture, PS, 167Wn. App. 221, 239 n.4, 272 P.3d 289 (2012) ("While the ultimate issue oflimitations in arbitration would have been for the arbitrator, the fact that RiverHouse had so far notfiled a demand was some evidence ithad elected litigation."). 

### Parler is analogous. In Parler. a nationwide class ofassistant managers at 

### Kentucky Fried Chicken (KFC) filed FLSA and state law wageclaims againsttheir 

### employer. Parler, 529 F. Supp. 2d at 1011. The court conditionally certified a national class ofemployees. Approximately 1,000 employees opted into theFLSA class. Parler, 529F. Supp. 2d at 1011. Theplaintiffs then asked the courttodecertify the

11No. 69306-9-1/12 single nationwide class, divide the class into several state-level FLSA classes, and transfer those claims to federal district court. Parler, 529 F. Supp. 2d at 1011. The court granted the motion to decertify but denied the motion to transfer. Parler. 529 F. Supp. 2d at 1011. Thereafter, over 300 employees sought to arbitrate their claims against KFC. Parler, 529 F. Supp. 2d at 1011. KFC argued those plaintiffs waived their right to arbitrate and the court agreed. Parler. 529 F. Supp. 2d at 1014. The court concluded that the plaintiffs "substantially invoked the litigation machinery" by opting into the national FLSA class and asking the court to transfer the claims to other courts rather than to an arbitrator. Parler, 529 F. Supp. 2d at 1014. The court stated the plaintiffs indicated their first-choice forum was a federal court and "[fjiling a case in federal court 

### and seeking arbitration only after the litigation goes badly is acting inconsistently with the right to arbitrate." Parler, 529 F. Supp. 2d at 1014-15. 

### Based on the undisputed facts, we conclude Tulip's election to pursue potential class actions in federal court is inconsistent with arbitration under the terms ofthe Agreement. 3. Prejudice 

### SCI contends that the extent oflitigation in federal court and Tulip's delay in 

### seekingarbitration establishedprejudiced. Tulip argues SCI did not establish that the three and one-half-year delay and costs of discovery prejudiced SCI. To determine whetherthe party opposing arbitration was prejudiced, the court 

### examines the extent of the delay, the degree oflitigation preceding the motion to 

### compel arbitration, the resulting expenses, and other surrounding circumstances.

12No. 69306-9-1/13 Steele. 85 Wn. App. at 858-59. Prejudice can be shown if a party does not demand arbitration during pretrial proceedings and engages in inconsistent acts: [Wjhen a party fails to demand arbitration during pretrial proceedings, and in the meantime engages in pretrial activity inconsistent with an intent to arbitrate, the party opposing a motion to compel arbitration may more easily show its position has been compromised, i.e., prejudiced. Kinsev. 53 Wn. App. at 170. In Steele, this court identified two types of prejudice and held that an unnecessary 10-month delay in bringing a demand for arbitration, coupled with aggressive discovery, satisfied the prejudice requirement: 

### "Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration, or itcan be found when a party too long postpones his 

### invocation of his contractual right to arbitration, and thereby causes his adversary to incur unnecessary delay or expense." 

### Steele. 85 Wn. App. at 858-598 (quoting Kramer v. Hammond, 943 F.2d 176, 179 (2nd Cir. 1991)). 

### Here, Tulip made no demand to arbitratefor over three and one-halfyears after his employment ended and never asserted his right to arbitration in Bryant, Stickle, or Emmick. Tulip demanded arbitration under the Agreement only after his claims were dismissed in Bryant, Stickle, and Emmick. We conclude SCI met its burden to show the

8 (Emphasis omitted.) 13No. 69306-9-1/14 

### delay in seeking arbitration prejudiced SCI.9 We affirm dismissal ofthe petition to compel arbitration.

WE CONCUR: 

# SjQsArrfQ**(cy9In astatementofadditional authority, Tulip cites Biernacki v. Service Corp. International, 533 

### Fed. App'x741 (9th Cir. 2013). Because Biernackiexplicitly relies on California statelaw, notfederal law,
we do not address Biernacki. 14