Filed 10/6/16 Cardenas v. Real Time Staffing Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ALMA ROSA CARDENAS et al.,

Plaintiffs and Respondents,

v.

REAL TIME STAFFING SERVICES, LLC.,

Defendant and Appellant.

F071560

(Super. Ct. No. 14CECG03335)

OPINION

APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y. 

Hamilton, Jr., Judge.

Seyfarth Shaw, Timothy L. Hix, Kiran Aftab Seldon and Daniel C. Whang for 

Defendant and Appellant.

Wilson Trial Group, Dennis P. Wilson; The Luti Law Firm and Anthony N. Luti 

for Plaintiffs and Respondents.

-ooOooThis appeal presents the question of whether the parties formed a contract to 

arbitrate their disputes. The trial court found that no arbitration agreement was formed 

by the employer and employees in question and, consequently, there was nothing to 

enforce. Accordingly, the court denied the employer’s petition to compel arbitration. 
2.

The employer contends an agreement to arbitrate was formed when the employees 

completed online employment applications and placed their initials immediately below 

the voluntary arbitration provisions contained in each application. The employer argues 

these initials and the employees’ electronic signatures at the end of the application 

demonstrated their consent to arbitration and waiver of class action claims. In the 

employer’s view, the trial court denied its petition to compel arbitration on grounds that 

flatly contradict black-letter law. 

The employees contend that they are Spanish speaking, none of the arbitration 

agreements were translated into Spanish, and none of the arbitration agreements were 

ever signed by them. The employees argue the employer, as the party seeking to compel 

arbitration, had the burden of establishing the existence of an arbitration agreement and 

simply failed to carry that burden.

We conclude the trial court was not required by law to accept the employer’s 

evidence as credible or to draw inference from the evidence that is favorable to the 

employer. Therefore, the trial court did not err when it was unpersuaded by the 

employer’s evidence about the formation of an agreement to arbitrate. The trial court’s 

finding of fact that the employees did not consent to arbitration will stand. 

We therefore affirm the order denying arbitration.

FACTS

Plaintiffs Alma Rosa Cardenas and Gabriela Arroyo-Briones are former hourly 

employees of defendant Real Time Staffing Services, LLC, which does business as Select 

Staffing. Plaintiffs have filed a putative class action against Select Staffing, alleging 

wage and hour claims. Select Staffing responded by filing a petition to compel 

arbitration. 

Select Staffing’s Evidence

Select Staffing supported its petition to compel arbitration with the declaration of 

Pattie Smith, a regional manager who is responsible for implementing and enforcing 
3.

policies concerning the application process. Smith’s declaration described Select 

Staffing’s online employment application process as follows:

“To submit an online application, an applicant must go to the Select 

Staffing website, fill out personal information such as their name, date of 

birth, contact information, social security number, and job history. Some 

personal information is required, and some is optional; some segments, 

such as the ‘Legal Acknowledgments’ section require the applicant to place 

their e-signature in the form of their initials in order to complete the 

application. However, the ‘Arbitration Agreement’ portion is voluntary, 

and the application form does not require applicants to initial this provision 

in order to complete the application. The voluntary nature of this provision 

is reflected on the electronic application form itself, which includes a red 

asterisk next to required fields, but notably does not include an asterisk next 

to the field for initials signifying assent to the Arbitration Agreement. 

Attached to the Appendix of Evidence as Exhibit A is a true and accurate 

copy of a screenshot of the online application form as viewed by an 

applicant at the time the form is completed.” 

Smith’s declaration also stated that the application and all related legal notices and 

agreements are offered in Spanish on Select Staffing’s website. Smith asserted that, at 

the end of the online application, applicants are asked to verify that the information 

provided is correct and then e-sign and date the application. This final e-signature is 

required to complete the application. Smith also asserted that once an application is 

completed, Select Staffing cannot change the information it contains. 

After presenting the foregoing information about the online application process, 

Smith’s declaration described each plaintiffs’ application. As to Cardenas’s application, 

Smith declared: 

“On August 29, 2013, Plaintiff Alma Cardenas submitted an electronic 

application for employment with Select Staffing via the Select Staffing 

website. She entered her name, telephone number, address, social security 

number, and answered questions about her prior work experience. Plaintiff 

Cardenas indicated that she read, authorized, and consented to the 

‘MUTUAL AGREEMENT REGARDING ARBITRATION AND CLASS 

CLAIMS’ by placing her initials, ‘ARC’, at the end of this portion of her 

application. At the end of the application, Plaintiff Cardenas also entered 

her name ‘ALMA R. CARDENAS’ and entered the date, August 29, 2013 
4.

to indicate that she certified that the information contained in the 

application was true and correct and that she read and understood all 

statements contained in the application. The application was then 

electronically time-stamped by Select Staffing indicating receipt of Plaintiff 

Cardenas’ application at 3:26 p.m. on August 29, 2013. A true and correct 

copy of Plaintiff Cardenas’ signed application and agreement to arbitrate 

claims is attached ....” 

Smith’s declaration provided a similar description of Arroyo-Briones’s online 

application. The applications attached to Smith’s declaration were in English and the 

contents of those applications are as Smith described. 

Smith also stated that Select Staffing hired Cardenas for a temporary assignment 

as a result of her online application. That assignment lasted from September 3, 2013, 

until January 4, 2014. Select Staffing hired Arroyo-Briones for a temporary assignment 

as a result of her online application. Her assignment started on April 7, 2013, and ended 

on August 23, 2014. 

Plaintiffs’ Evidence

Cardenas’s declaration states that (1) she speaks Spanish and requires a translator 

to communicate in English; (2) she “was never provided the services of any sort of 

translation for any arbitration agreement”; (3) she never discussed, negotiated or 

otherwise provided input into the form of arbitration agreement attached to Select 

Staffing’s petition to compel arbitration; (4) she was never provided with any of the 

attachments to the form of arbitration agreement used by Select Staffing; and (5) she 

never read, understood or agreed to be bound by the terms in the form arbitration 

agreement because no terms were provided to her in Spanish or in a manner that she 

could comprehend. Nevertheless, Cardenas appears to have understood the application 

process well enough to state that, based on her personal knowledge, “[t]he Arbitration 

Agreement was presented to me on a ‘take it or leave it’ basis.” 

The declaration of Arroyo-Briones used identical language. Both declarations 

include an interpreter’s statement that the interpreter read the declaration to the plaintiffs 
5.

by translating it from English to Spanish and each plaintiff acknowledged to the 

interpreter that she understood it and it was accurate. 

The Arbitration Provision

The employment applications provided by Select Staffing as attachments to 

Smith’s declaration included two paragraphs under a bolded heading about a mutual 

agreement to arbitration and class actions. The first paragraph included the following: 

“In the event there is any dispute between Employer and I relating to or arising out of or 

relating to my employment ... Employer and I agree to submit all such claims or disputes 

to be resolved by final and binding arbitration in accordance with the National Rules for 

the Resolution of Employment Disputes of the American Arbitration Association within 

the state of employment.” The second paragraph stated that any “claims must be 

submitted on an individual basis only and I hereby waive the right to bring or join any 

type of collective or class claim in arbitration, in any court, or in any other forum.” 

Immediately below the two paragraphs, the application forms completed by the 

plaintiffs stated: “Please initial authorization and consent for MUTUAL AGREEMENT 

TO ARBITRATE section*.” The inclusion of asterisks on the printed versions of the 

completed applications was described in Smith’s declaration as a computer error with her 

assurance that an asterisk did not appear in the online version. Thus, Smith stated that the 

voluntary nature of the arbitration provision “is reflected on the electronic application 

form itself, which includes a red asterisk next to required fields, but notably does not 

include an asterisk next to the field for initial signifying assent to the Arbitration 

Agreement.” Smith supported this assertion about the asterisk by attaching an “accurate 

copy of a screenshot of the online application form as viewed by an applicant at the time 

the form is completed.” A review of that copy of the screenshot shows the please-initial 

line under the arbitration provision was not followed by an asterisk. The problem with 

the asterisk may have undermined the trial court’s willingness to trust the accuracy of any 

of the computer generated documents attached to Smith’s declaration. 
6.

PROCEEDINGS

In November 2014, plaintiffs, on behalf of themselves as individuals and others 

similarly situated, filed a complaint against Select Staffing and Del Monte Foods. The 

complaint alleged claims under the California Labor Code for failure to provide meal and 

rest breaks, failure to pay wages (including regular wages, overtime, split-shift pay, and 

wages owed at termination), and failure to provide accurate wage statements. Plaintiffs 

also asserted an unfair competition claim under Business and Professions Code section 

17200, which they described as a “public interest private attorney general action.” 

In February 2015, Select Staffing filed a petition to compel arbitration of 

plaintiffs’ claims. The petition relied on both federal and California statutes. 

In March 2015, plaintiffs filed an opposition to the petition to compel arbitration. 

The opposition appears to contain material cut-and-pasted from another case and, thus, 

presented arguments and assertions of fact that did not correspond to Select Staffing’s 

petition. Nonetheless, the opposition presented the argument that the court must first 

determine the existence of an arbitration agreement between the parties before addressing 

the various challenges to the enforceability of any such agreement. 

Select Staffing filed a reply to plaintiffs’ opposition that argued, among other 

things, plaintiffs had failed to address pertinent facts. For example, Select Staffing 

asserted that plaintiffs did not acknowledge that (1) they chose to complete their 

applications in English rather than Spanish or (2) they signed their initials to the 

arbitration provisions, which indicated their consent to be bound by those provisions. 

The day after Select Staffing filed its reply, plaintiffs filed a first amended 

complaint, which alleged two additional causes of action and provided a new name for 

the defendant previously referred to as Del Monte Foods. The new claims alleged Select 

Staffing (1) failed to pay employees for reporting time and (2) violated the Private 

Attorneys General Act, Labor Code section 2698, et seq. 
7.

The hearing on Select Staffing’s petition to compel arbitration was set in April 

2015. The day before the hearing, the trial court issued a tentative ruling to deny the 

petition. Select Staffing’s counsel stated that they attempted to request oral argument. 

However, neither the trial court nor opposing counsel received the request. 

Consequently, the court did not allow the petition to be argued. However, at the hearing,

counsel for Select Staffing made an oral request to be allowed to file a new petition to 

compel arbitration addressing the additional causes of action added by the first amended 

complaint. Plaintiffs’ attorney responded by arguing that the substance of the tentative 

ruling, which resolved disputes of fact, also would apply to the new causes of action. 

Counsel for Select Staffing argued a petition to compel arbitration was a responsive 

pleading and, under the code, it was entitled to file a petition addressing the first amended 

complaint. The trial court denied Select Staffing’s oral request to file another petition to 

compel. 

The trial court’s tentative ruling, which became its final order, addressed whether 

a contract was actually formed and the evidence relevant to that issue: 

“There is a dispute of fact presented by evidence as to whether or not 

plaintiffs, who speak only Spanish, were provided with information about 

the arbitration provision in that language. Plaintiffs, who are direct 

witnesses to their own employment, say they were not. Defendant, 

speaking through a manager who was not involved in the employment 

process of these two individuals, states that information in Spanish was 

available on a website on the date in question, but provides no copies or 

translation of it. The Court finds that plaintiffs’ direct evidence is more 

persuasive, and that they did not agree to arbitrate any claims.” 

Based on this determination, the court denied the motion to compel arbitration, 

concluding it was not necessary to determine whether the arbitration clauses were 

enforceable. 

Select Staffing filed a timely notice of appeal from the order denying its petition to 

compel arbitration. 
8.

DISCUSSION

I. FORMATION OF A CONTRACT TO ARBITRATE 

A. Petitioner’s Burden to Prove an Arbitration Agreement Exists

“The party seeking to compel arbitration bears the burden of proving that an 

arbitration agreement exists.” (Crippen v. Central Valley RV Outlet (2004) 124 

Cal.App.4th 1159, 1164.) The existence of a valid agreement to arbitrate is determined 

by reference to state law principles concerning the formation, interpretation, revocation 

and enforceability of contracts. (Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 

906.) 

Here, the parties dispute whether an agreement to arbitrate existed and the trial 

court found it did not. Accordingly, we turn to the principles of contract law that address 

the formation of a contract.

B. Rules Governing Contract Formation

Under California law, a contract is formed when the following essential elements 

are present: (1) parties capable of contracting, (2) the consent of those parties, (3) a 

lawful object, and (4) adequate consideration. (Civ. Code, § 1550; see BAJI No. 10.55 

[contract defined/elements].) “The consent of the parties to a contract must be: [¶] 1. 

Free; [¶] 2. Mutual; and, [¶] 3. Communicated by each to the other.” (Civ. Code, 

§ 1565.) Mutual consent is determined under an objective standard applied to the 

outward manifestations or expressions of the parties—that is, the reasonable meaning of 

their words and acts, and not their unexpressed intentions or expectations. (Alexander v. 

Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.) The existence of mutual 

consent presents a question of fact. (Ibid.; BAJI No. 10.60 [mutual consent])

Whether the parties mutually consented to a particular term (such as arbitration) is 

determined under objective criteria, the test being what the outward manifestations of 

consent would lead a reasonable person to believe. (Merced County Sheriff’s Employee’s 
9.

Assn. v. County of Merced (1987) 188 Cal.App.3d 662, 670; Civ. Code, §§ 1581 

[communication of consent], 1636 [mutual intention at the time of contracting is 

ascertained].) 

C. Standard of Review

1. Fundamental Rules

A general principle of appellate practice is that an “‘order of the lower court is 

presumed correct.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) 

Pursuant to this principle, an appellant will win on appeal only if it affirmatively shows 

an error occurred. (Ibid.)

The presumption of correctness is the foundation for the rule of appellate practice 

that, when the appellate record is silent on a matter, the reviewing court must indulge all 

intendments and presumptions that support the order. (Denham, supra, 2 Cal.3d at p. 

564.) The intendments and presumptions indulged by the appellate court include 

inferring the trial court made implied findings of fact that are consistent with its order. 

(People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 

Cal.4th 1135, 1143 [appellate courts must accept trial court’s implied findings of facts 

that are supported by substantial evidence].) 

2. Implied Findings as to Witness Credibility

The presumption of correctness and the doctrine of implied findings encompass 

determinations about witness credibility. Therefore, when an appellant challenges a trial 

court’s implied finding that some of the evidence presented was not credible, appellate 

courts apply the following principle: “A trier of fact is free to disbelieve a witness, even 

one uncontradicted, if there is any rational ground for doing so. [Citations.]” (In re 

Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for disbelieving a 

witness include the factors listed in Evidence Code section 780, which include the 

witness’s capacity and opportunity to perceive the matter and the witness’s interest in the 
10.

matter being litigated. (Evid. Code, § 780, subds. (c), (d), (f); see Pierce v. Wright (1953) 

117 Cal.App.2d 718, 723 [court is not bound to believe interested witness].) In short, 

California appellate courts have long recognized that “the trier of facts is not required to 

believe everything that a witness says even if uncontradicted. [Citations.]” (Guerra v. 

Balestrieri (1954) 127 Cal.App.2d 511, 515.)

These principles make it difficult for an appellant to successfully challenge a trial 

court’s finding that a witness was or was not credible. An unfortunate result of this 

difficultly is that some appellate practitioners (1) fail to acknowledge that the trial court’s 

decision contains implied credibility findings, (2) ignore the principles governing the 

review of a trial court’s credibility findings, and (3) proceed as though they were entitled 

to a presumption that their evidence was both credible and accurate. Such appellants pin 

their hopes for reversal on the appellate court failing to recognize implied credibility 

findings inherent in the trial court’s decision and accepting appellants version of the facts.

C. Select Staffing’s Theory of Mutual Consent

1. Version of Historical Facts

Select Staffing’s version of the facts relating to mutual consent and, thus, the 

formation of an agreement to arbitrate asserts that plaintiffs placed their initials in the box 

immediately below the arbitration provisions when they filled out applications online. To 

establish the existence of this fact, Select Staffing asserts that (1) a Spanish version of the 

application was available online when plaintiffs completed their applications; (2) 

plaintiffs chose to complete the English version of the application; (3) an accurate copy 

of the completed applications were provided to the court; and (4) Select Staffing cannot 

change the information contained in a completed online application. 

2. The Question Presented

The fundamental question before this court is whether we are required by law to 

accept Select Staffing’s version of the historical facts or some other version of those 
11.

facts. We will evaluate this question by (1) examining the evidence Select Staffing 

presented to prove its version of the facts, (2) determining how the trial court assessed 

that evidence and what express or implied findings of fact it made after that assessment, 

and (3) applying the rules of appellate practice that govern our review of the trial court’s 

express and implied findings of fact. 

3. Analysis of the Evidence About Initials

Select Staffing attempted to prove that plaintiffs initialed the boxes indicating their 

consent to arbitration by presenting Smith’s declaration. Smith stated that each plaintiff 

“indicated that she read, authorized, and consented to the [arbitration provisions] by 

placing her initials ... at the end of this portion of the application” and that a true and 

correct copy of each plaintiff’s signed application and agreement to arbitrate was attached 

to her declaration.

The trial court assessed this evidence by stating that plaintiffs were direct 

witnesses to the application process and Smith was not involved in the employment 

process of the plaintiff. Thus, in determining the credibility of Smith’s assertions of fact, 

the trial court considered “[t]he extent of [Smith’s] opportunity to perceive [the] matter 

about which [s]he testified.” (Evid. Code, § 780, subd. (d) [considerations as to 

truthfulness of testimony].) Next, the trial court stated that it “finds that plaintiffs’ direct 

evidence is more persuasive, and they did not agree to arbitrate any claims.” This 

express finding about plaintiffs’ evidence is consistent with an implied finding that Select 

Staffing’s evidence was not credible. As a result, the applicable principles of appellate 

review require this court to infer or presume that the trial court impliedly found that 

Smith’s declaration was not credible. (See pt. I.B, ante.) The logical consequences of 

this implied credibility finding and the principle that requires us to indulge all 

presumptions and intendments in favor of the trial court’s order are that (1) the 

applications attached to Smith’s declarations are not true and correct copies of the online 
12.

applications completed by plaintiffs (because no copies of the alleged online Spanish 

version were provided as evidence and the completed printed version of the arbitration 

provisions contained the asterisk indicating that arbitration was mandatory) and (2) 

plaintiffs did not actually place their initials in the box approving the arbitration 

provisions when they completed the online applications.

We recognize that plaintiffs’ declarations did not specifically state that they did 

not initial the boxes. Instead, the declarations contained the general statements that they 

“never ... agreed to be legally bound to all of the above terms”—that is, the arbitration 

provisions. Many different inferences can be drawn from this general assertion about not 

agreeing, including the inference that they did not actually place their initials in the box 

following the arbitration provisions when completing the online application. Ultimately, 

however, whether plaintiffs’ evidence was sufficient to support a finding that they did not 

initial the boxes is not the question before this court because Select Staffing had the 

burden of proving the existence of an agreement to arbitrate, which included proving the 

element of mutual consent. (Crippen v. Central Valley RV Outlet, supra, 124 

Cal.App.4th at p. 1164 [burden of proof].)

When the appellant had the burden of proof in the lower court’s proceeding and 

the trier of fact explicitly or implicitly concluded the appellant did not carry the burden, 

“the question for a reviewing court is whether the evidence compels a finding in favor of 

the appellant as a matter of law. [Citation.]” (Wells Fargo Bank, N.A. v. 6354 Figarden 

General Partnership (2015) 238 Cal.App.4th 370, 390.) Thus, “‘it is misleading to 

characterize the failure-of-proof issue as whether substantial evidence supports the 

judgment.’” (Valero v. Board of Retirement of Tulare County Employees’ Assn. (2012) 

205 Cal.App.4th 960, 965.) Under the finding-compelled-as-a-matter-of-law standard, 

the finding is required only if 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. (In re I.W. (2009) 180 
13.

Cal.App.4th 1517, 1528.) Here, Select Staffing has failed to meet this difficult standard. 

Smith was impeached by her failure to perceive the matters set forth in her declaration, 

her interest as the manager responsible for the online application process, the lack of 

physical evidence to support her allegation that a Spanish version of the arbitration 

provisions was provided online, and the completed printed version of the arbitration 

provisions, which contained an asterisk indicating that arbitration was mandatory. Thus, 

Select Staffing has not established that the trial court was compelled as a matter of law to 

accept its version of the facts. 

In sum, we conclude that Select Staffing has failed to demonstrate the element of 

mutual consent, which is necessary for the formation of an actual agreement to arbitrate. 

Therefore, the trial court correctly denied the petition to compel arbitration.1

II. OTHER ISSUES 

Based on the foregoing conclusion, we need not address the issues relating to (1) 

whether the initials on the application form, if placed there by plaintiffs, were sufficient 

to demonstrate their consent to arbitration, (2) substantive unconscionability, (3) 

procedural unconscionability, (4) the enforceability of the class action waiver, and (5) 

whether the trial court should have stayed any further court proceedings on the alleged 

 

1 We recognize that existing rules of law relating to the employer’s burden of proof 

and the trial court’s role as the trier of fact create uncertainty for employers using online 

applications over whether the trier of fact will be convinced by the employer’s evidence 

that the applicants actually consented to the arbitration provisions. Select Staffing has 

not argued that this uncertainty should be addressed by changing the rules regarding the 

burden of proof or the rules of appellate review applied to a trial court’s express and 

implied findings of fact about the formation of an agreement to arbitrate. We note that 

employers using online applications may be able to reduce the uncertainty by requesting 

the trial court to (1) allow it to pursue, before the hearing on the motion to compel, 

discovery limited to matters affecting the formation and enforceability of an agreement to 

arbitrate or (2) allow it to examine the employees on such matters at the hearing on the 

motion to compel. Here, Select Staffing made no such request.
14.

violations of the Private Attorneys General Act pending the completion of arbitration of 

all of the remaining claims.

DISPOSITION

The order denying the petition to compel arbitration is affirmed. Plaintiffs shall 

recover their costs on appeal.

_____________________

FRANSON, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

McCABE, J.*

 

*

Judge of the Superior Court of Merced County, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.