Filed 5/26/22 Leeper v. Nickerson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

CHRISTINA LEEPER, 

 Plaintiff and Respondent, 

v.

SANDRA NICKERSON et al., 

 Defendants and Appellants. 

2d Civ. No. B311379

(Super. Ct. No. 56-2019-

00535133-CU-WT-VTA)

(Ventura County)

Defendants Sandra Nickerson, Survival Systems Staffing 

Inc. (Survival Systems), SJNDEN LLC and SJNDEN Services, 

LLC appeal the trial court’s order denying their motion to compel 

arbitration in this action by a former employee, plaintiff 

Christina Leeper.

1

 They contend the trial court erred by finding 

they had failed to meet their burden of proving the existence of 

an arbitration agreement. We affirm. 

1 Defendant Dennis Nickerson passed away on October 5, 

2020. 
2

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Leeper worked as an executive assistant for Survival 

Systems and its related entities, which the Nickersons co-owned.

Claiming she was sexually harassed by Dennis Nickerson, Ms. 

Leeper filed this action for sexual battery, hostile sexual 

environment, constructive discharge and breach of employers’ 

duty to prevent harassment. 

Defendants moved to compel arbitration “based on Ms.

Leeper’s signed consent to the company’s arbitration agreement 

contained in its employee handbook.” Defendants did not 

produce either the original or a copy of the agreement. The 

motion was based on (1) Survival Systems’ custom and practice of 

requiring all new employees to sign the arbitration agreement, 

(2) Ms. Nickerson’s custom and habit of not authorizing an 

employee’s first paycheck without a signed arbitration agreement 

in place and (3) proof that 73 of Survival Systems’ 74 employees 

had signed the arbitration agreement in compliance with 

company policy. Ms. Leeper was the only employee without an 

arbitration agreement in her personnel file. Ms. Leeper denied

receiving the employee handbook and arbitration agreement. 

Faced with a “credibility issue,” the trial court held an 

evidentiary hearing on January 11, 2021. Ms. Nickerson testified 

that she does not authorize the issuance of an employee’s first 

paycheck unless the arbitration agreement is among the signed 

employment documents. Her custom and habit is to log into the 

payroll system on the Wednesday before payroll and review the 

“time cards, all agreements of any new employees, any 

commissions payable, everything that [is] need[ed] in order to 

approve the pay for the office.” Ms. Nickerson admitted she did 

not see Ms. Leeper sign the arbitration agreement, but she had 
3

“no doubt” she had seen Ms. Leeper’s signature on the agreement 

at some point. 

In her testimony, Ms. Leeper reiterated that she did not 

receive or sign an arbitration agreement. She testified that after 

a week or two of employment, Jill Kimball in human resources 

contacted her and said, “‘I don’t have any paperwork on you at 

all.’” Kimball, who was processing the payroll, asked Ms. Leeper

to bring in her driver’s license and Social Security card and to 

also complete the payroll tax forms. 

In response to the suggestion that she had removed the 

arbitration agreement from her personnel file before leaving her 

employment, Ms. Leeper testified she did not have access to

employee personnel files, which were kept in a locked cabinet. 

After hearing this testimony, the trial court took the matter 

under submission. In a written ruling, the court found 

defendants had failed to meet their burden of proof, noting that 

“[Ms.] Nickerson’s credibility does not outweigh that of [Ms.]

Leeper.” 

DISCUSSION

Standard of Review

“‘In the case where the trier of fact has expressly or 

implicitly concluded that the party with the burden of proof did 

not carry the burden and that party appeals, it is misleading to 

characterize the failure-of-proof issue as whether substantial 

evidence supports the judgment.’ [Citation.] ‘Thus, where the 

issue on appeal turns on a failure of proof at trial, the question 

for the reviewing court becomes whether the evidence compels a 

finding in favor of the appellant as a matter of law. [Citations.] 

Specifically, the question becomes whether the appellant’s 

evidence was (1) “uncontradicted and unimpeached” and (2) “of 
4

such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.”’ 

[Citation.]” (Juen v. Alain Pinel Realtors, Inc. (2019) 32 

Cal.App.5th 972, 978-979 (Juen); Fabian v. Renovate America, 

Inc. (2019) 42 Cal.App.5th 1062, 1067 (Fabian).) 

The Trial Court Did Not Err in Denying 

Defendant’s Motion to Compel Arbitration

An arbitration agreement must be in writing to be valid 

and enforceable. (Code Civ. Proc., § 1281.) “The validity of an 

arbitration agreement . . . is determined by a petition or motion 

to compel arbitration. [Citations.] Motions for arbitration are 

adjudicated summarily. [Citation.] Factual issues may be 

submitted on declarations and affidavits, or by oral testimony in 

the court’s discretion. [Citation.]” (Juen, supra, 32 Cal.App.5th 

at pp. 977-978.) “‘[T]he party seeking arbitration bears the 

burden of proving the existence of an arbitration agreement by a 

preponderance of the evidence.’” (Serafin v. Balco Properties Ltd., 

LLC (2015) 235 Cal.App.4th 165, 172.) 

Here, the existence of an arbitration agreement between 

Ms. Leeper and Survival Systems was contested. Ms. Leeper

claimed that, at the time of her employment, she did not receive 

the employee handbook or an arbitration agreement. Ms. 

Nickerson conceded that she did not see Ms. Leeper sign the 

arbitration agreement, but said she had “no doubt” she had seen 

Ms. Leeper’s signature on the agreement prior to processing Ms. 

Leeper’s first paycheck. 

Evidence Code section 1105 states that “[a]ny otherwise 

admissible evidence of habit or custom is admissible to prove 

conduct on a specified occasion in conformity with the habit or 

custom.” Defendants contend the trial court erred as a matter of 
5

law by relying upon Hayward Tamkin & Co. v. Carpinteria Inv. 

Co. (1968) 265 Cal.App.2d 617, which held, in the context of a 

summary judgment proceeding, that “custom and usage is only 

an instrument of contractual interpretation [citations], [and] may 

not be used to create a contract.” (Id. at p. 623.) Defendants 

complain the trial court improperly excluded their evidence of 

Ms. Nickerson’s custom and habit in obtaining employee 

arbitration agreements. 

It is not clear from the record, however, that the trial court 

declined to consider defendants’ custom and habit evidence. It 

summarized the testimony of both Ms. Leeper and Ms. Nickerson

in its ruling and concluded that neither witness was more 

credible than the other. The court did not expressly exclude Ms. 

Nickerson’s evidence of her custom and habit regarding employee 

arbitration agreements. It simply did not find her testimony any 

more credible than Ms. Leeper’s testimony.

Even if we assume the trial court did exclude Ms. 

Nickerson’s testimony regarding custom and habit, defendants 

have failed to demonstrate prejudice. To prevail on appeal, 

defendants must establish that the evidence, if considered, would 

have compelled a finding in their favor as a matter of law. (Juen,

supra, 32 Cal.App.5th at pp. 978-979; Fabian, supra, 42 

Cal.App.5th at pp. 1066-1067.) They have failed to do so. Their 

evidence was not uncontradicted and unimpeached. Nor was it of 

a weight and character as to leave no room for an alternative 

finding. (See Juen, at pp. 978-979.) 

“Although public policy favors arbitration in general, we 

will not infer that the right to a jury trial has been waived absent 

a clear agreement to submit the dispute to arbitration.” 

(Kleveland v. Chicago Title Ins. Co. (2006) 141 Cal.App.4th 761, 
6

764.) To prevail on appeal, defendants were required to show 

that their evidence compelled a finding that the parties agreed to 

submit the dispute to arbitration. Notwithstanding defendants’ 

assertions to the contrary, Ms. Nickerson’s testimony does not 

compel such a finding. 

DISPOSITION

The order denying the petition to compel arbitration is 

affirmed. Ms. Leeper shall recover her costs on appeal.

 NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

TANGEMAN, J.
7

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Pachowicz Goldenring, Mark Pachowicz, on behalf of 

Defendants and Appellants. 

Glenn J. Campbell, on behalf of Plaintiff and Respondent.