Filed 5/23/22 Foothill Heights Care Center, LLC v. Jimenez CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

FOOTHILL HEIGHTS CARE 

CENTER, LLC,

Defendant and Appellant,

v.

LIILLIAN JIMENEZ,

Plaintiff and Respondent.

 B311976

 (Los Angeles County

 Super. Ct. No. 20STCV12843)

APPEAL from an order of the Superior Court of Los 

Angeles County, Richard J. Burdge, Jr., Judge. Affirmed. 

Lewis Brisbois Bisgaard & Smith, Raul L. Martinez and 

John Haubrich, Jr. for Defendant and Appellant. 

McIntyre & Larson, Jeffrey Curran McIntyre and Robert 

Garcia, Jr. for Respondent and Plaintiff. 

__________________________________
2

Defendant and appellant Foothill Heights Care Center, 

LLC, appeals from an order denying a petition to compel 

arbitration in favor of plaintiff and respondent Lillian Jimenez in 

this employment discrimination action. The trial court found 

there was no objective manifestation of assent to the arbitration 

agreement under the circumstances of this case, because both 

parties knew Jimenez did not understand the document when 

she signed it; Foothill knew Jimenez had very limited

understanding of English, her requests to obtain a translation 

were denied, and Foothill required her to sign the document by 

the end of her shift to keep her job. On appeal, Foothill contends: 

1) although the company was aware Jimenez did not understand 

the contents of the arbitration agreement, Jimenez’s signature on 

the arbitration agreement was sufficient to constitute her 

objective manifestation of assent; and 2) her continued 

employment with Foothill also constituted acceptance of the 

arbitration agreement. We conclude substantial evidence 

supports the trial court’s finding that there was no objective 

manifestation of assent to the arbitration agreement, and under 

the circumstances, her continued employment did not constitute 

acceptance. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jimenez was born in Mexico City in 1971 and grew up 

speaking Spanish. She has a very limited knowledge of English 

and needs a translator for discussions in English that are not 

simple or routine. She often relies on her daughter to translate

for her when necessary. 
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Foothill is a skilled nursing facility. Foothill’s predecessorin-interest hired Jimenez to work as a certified nursing assistant 

in 2007. Her job did not require extensive knowledge of English;

she could competently perform her job duties with simple 

documentation entries in the patients’ charts. She cannot read or 

write English beyond the limited routine statements necessary to 

perform her job tasks.

Foothill took over operation of the nursing facility at the 

end of 2015. On December 31, 2015, approximately eight

employees were called into the office, including Jimenez. Foothill 

said the employees needed to reapply for their positions and fill 

out employment paperwork to stay at their jobs and work for 

Foothill. 

Several of the employees spoke no English at all. Foothill 

gave the employees a handful of documents, none of which were 

in Spanish. Three human resources representatives were present 

to assist the employees with the paperwork. One Foothill 

representative spoke fluent Spanish and could have translated or 

answered questions, but no one explained the paperwork to the 

employees. The human resources representatives told Jimenez 

where to sign the documents. Jimenez asked for a Spanish 

translation of the documents, but was told there was no 

translation available. She asked if she could take the documents 

home for her daughter to translate, but was told that was not 

allowed. When she said that she did not want to sign the 

documents without having her daughter read them to her, she 

was told that she was required to sign the documents on 

December 31, 2015, before leaving work for the day. She did not 

know what the documents were that she signed, but she did not 

want to jeopardize her position, so she signed them. She did not 
4

know that she was giving up her legal right to have a jury trial 

and related legal rights. She was never provided with a copy of 

the agreement in English or in Spanish. 

As part of the employment agreement that she entered into 

with Foothill, Jimenez signed a four-page arbitration agreement 

which stated in English, “[T]he Company and I agree that this 

Dispute Resolution Agreement (the ‘Agreement’) will apply to all 

covered legal claims between the Company and me. [¶] . . . 

Except as otherwise provided in this Agreement, both the 

Company and I mutually agree that all disputes arising out of or 

related to my application for employment, employment 

relationship with, or the termination of my employment from, the 

Company shall be resolved only by an Arbitrator through final 

and binding arbitration and not by way of court or jury trial.” 

The provisions of the arbitration agreement included the method 

for selection of an arbitrator, the right to conduct civil discovery, 

responsibility for payment of the arbitrator’s fees, an agreement 

not to disclose the existence or results of any arbitration, and a 

waiver of the right to a class action.

Jimenez’s signature followed a provision stating that she 

had received, read, understood, and agreed to all of the terms in 

the dispute resolution agreement, and that her continued 

employment following receipt of the agreement constituted 

mutual acceptance of the agreement regardless of whether she 

signed it. In addition, Jimenez initialed several statements 

acknowledging that she had an opportunity to read the 

arbitration agreement and ask questions before she signed the 

arbitration agreement, including a reasonable opportunity to 

consult with an attorney about the arbitration agreement before 

signing it, and that she understood the terms and conditions of 
5

the agreement. Her employment with Foothill began the 

following day on January 1, 2016. 

Jimenez believed that she was subject to discrimination on 

the basis of her age and disability beginning in August 2018, and

constructively discharged in February 2019. She received a 

right-to-sue letter from the Department of Fair Employment and 

Housing in April 2019. Foothill “released” Jimenez a year later, 

on March 18, 2020, because she had “abandoned” her position

with Foothill. On April 1, 2020, she filed a lawsuit against 

Foothill for disability and age discrimination, failure to provide 

reasonable accommodations, failure to engage in a good faith 

interactive process, retaliation, and wrongful termination in

violation of public policy. 

In October 2020, Foothill filed a motion to compel 

arbitration based on the parties’ written agreement. Jimenez 

opposed the motion. A hearing was held on the motion to compel 

arbitration on March 10, 2021, but no reporter’s transcript has 

been included in the appellate record. The trial court found the 

evidence showed Foothill knew, prior to requiring Jimenez to sign 

the arbitration agreement, that she could not read the 

agreement. The arbitration agreement requires language facility 

far beyond simple English skills. Jimenez asked for a Spanish 

translation, and she asked to take the agreement home for her 

daughter to translate, but both requests were denied. Based on 

the evidence, the trial court found there was no objective 

manifestation of assent to the agreement. As a result, the 

agreement was not valid and enforceable under California law. 

The trial court denied the motion to compel arbitration. 

The court commented, “It is odd that if the employer 

actually negotiated the agreement in Spanish, so that she 
6

understood what she was signing and if it were a loan, lease, 

reverse mortgage, or fees for legal services, she would have had to 

receive a translation of each term into Spanish under Civil Code 

section 1632. By placing a document in front of her that she 

cannot understand and forcing her to sign immediately, in 

[Foothill’s] view, she is entitled to no protection regarding 

understanding what she is signing before giving up her 

constitutional right to a jury trial.” Foothill filed a timely notice 

of appeal. 

DISCUSSION

Standard of Review

“California statutes create a ‘summary proceeding’ for 

resolving petitions or motions to compel arbitration. (Engalla v. 

Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 

(Engalla).) ‘The petitioner bears the burden of proving the 

existence of a valid arbitration agreement by the preponderance 

of the evidence, and a party opposing the petition bears the 

burden of proving by a preponderance of the evidence any fact 

necessary to its defense. [Citation.] In these summary 

proceedings, the 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. (Engalla, at p. 972.)” (Chambers v. Crown 

Asset Management, LLC (2021) 71 Cal.App.5th 583, 590

(Chambers).)

A petition to compel arbitration is essentially an equitable 

proceeding to require specific performance of a contract. 
7

(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 

Cal.4th 394, 411.) The trial court must determine whether an 

agreement to arbitrate exists. (Caballero v. Premier Care Simi 

Valley LLC (2021) 69 Cal.App.5th 512, 517 (Caballero).) “‘If that 

preliminary question requires the resolution of factual issues, 

then the court must resolve such issues . . . .’ [Citation.]” (Ibid.) 

General contract law applies to determine whether the 

parties formed a valid agreement to arbitrate their dispute. 

(Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 

Cal.App.4th 50, 59.) The same rules of construction apply to an 

arbitration agreement as any other contract. (Chambers, supra, 

71 Cal.App.5th at p. 590.) If the order denying the petition to 

compel arbitration rests solely on a question of law on undisputed 

facts, we review the issue de novo. (Caballero, supra, 69 

Cal.App.5th at pp. 517–518.) 

“‘If the [trial] court’s decision regarding arbitrability is 

based on resolution of disputed facts, we review the decision for 

substantial evidence.’ (Baker[ v. Italian Maple Holdings, LLC

(2017)] 13 Cal.App.5th [1152,] 1158.)” (Caballero, supra, 69 

Cal.App.5th at p. 518.) In such a case, “‘“‘we must presume the 

court found every fact and drew every permissible inference 

necessary to support its judgment, and defer to its determination 

of the credibility of witnesses and the weight of the evidence.’” 

[Citation.]’” (Hotels Nevada, LLC v. L.A. Pacific Center, 

Inc. (2012) 203 Cal.App.4th 336, 348.) “‘“[W]e review the trial 

court’s order, not its reasoning, and affirm an order if it is correct 

on any theory apparent from the record.”’ [Citation.]” (Ramos v. 

Westlake Services LLC (2015) 242 Cal.App.4th 674, 686 (Ramos).)
8

Mutual Assent

Foothill contends the evidence establishes the existence of a 

binding arbitration agreement. We conclude the trial court’s 

finding that there was no mutual assent to the agreement is 

supported by substantial evidence.

For a valid contract to exist, the parties must consent to the 

agreement. (Caballero, supra, 69 Cal.App.5th at p. 518.) The 

consent must be mutual, freely given, and communicated by each 

party to the other. (Civ. Code, § 1565.) Consent is not mutual 

unless the parties agree upon the same thing in the same sense. 

(Civ. Code, § 1580.) To determine whether there was mutual

consent for a contract, the court does not consider the subjective 

intentions or state of mind of the parties. (Leo F. Piazza Paving 

Co. v. Bebek & Brkich (1956) 141 Cal.App.2d 226, 230.) Instead, 

the court applies an objective standard to determine what a 

reasonable person would believe from the parties’ outward 

expressions of consent. (Ibid.) In other words, the court relies on

“‘the reasonable meaning of their words and acts, and not their 

unexpressed intentions or understandings.’ [Citation.]” 

(Caballero, supra, 69 Cal.App.5th at p. 518.)

“‘No law requires that parties dealing at arm’s length have 

a duty to explain to each other the terms of a written contract[.]’” 

(Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 

1674.) “‘Ordinarily, one who accepts or signs an instrument, 

which on its face is a contract, is deemed to assent to all its 

terms, and cannot escape liability on the ground that he has not 

read it. If he cannot read, he should have it read or explained to 

him.’ (1 Witkin, Summary of Cal. Law (9th ed. 1987) § 120, p. 
9

145.)” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 

Cal.App.4th 158, 163; Ramos, supra, 242 Cal.App.4th at p. 686.)

There are exceptions to the general rule, however. For 

example, “if the one who signs the instrument is unaware of the 

contractual provisions, he cannot be said to have agreed to them.

Thus, ‘[a]n exception to [the] general rule exists when the writing 

does not appear to be a contract and the terms are not called to 

the attention of the recipient. In such a case, no contract is 

formed with respect to the undisclosed term. [Citations.]’ 

[Citation.]” (Metters v. Ralphs Grocery Co. (2008) 161 

Cal.App.4th 696, 702.)

The trial court’s finding that Jimenez did not consent to the 

arbitration agreement is supported by substantial evidence. 

Ordinarily, Jimenez’s initials and signature on the agreement 

would constitute an objective manifestation of her intent to enter 

into an agreement, despite her limited ability to understand 

English and her failure to have someone translate the document 

for her. In this case, however, Foothill knew that Jimenez did 

not understand the document when she signed it. Foothill was 

aware that her ability to speak and understand English was 

limited. The arbitration agreement contained detailed provisions 

on sophisticated legal concepts. Jimenez exercised diligence to 

try to obtain a translation of the terms of the agreement. She 

requested a translation of the document in Spanish, alerting 

Foothill that she did not understand the agreement and needed a 

translation, but none was available. She asked to take the 

document home to have her daughter translate the document for 

her, but Foothill refused her request and insisted the documents 

be signed before the end of the working day. Knowing Jimenez 

could not understand the documents, Foothill presented the 
10

paperwork as standard employment documents required for 

“onboarding” with a new employer. Foothill had superior 

bargaining power, presented the agreement as a condition of 

continuing her employment, and required her to sign it

immediately. Jimenez did not have a reasonable opportunity to 

obtain a translation or have an attorney explain the document. 

Although Foothill was not required to explain the terms of the 

agreement to Jimenez, once Foothill knew Jimenez did not 

understand the agreement and had no opportunity to obtain a 

translation before signing it to keep her employment, Foothill 

could not reasonably rely on her signature alone as a 

manifestation of assent to its terms. 

Foothill did not provide Jimenez with a copy of the 

document for her own records, which would have allowed her to 

obtain a translation afterward and withdraw her consent. The 

trial court’s finding that her continued employment was not 

evidence of acceptance of the terms of the arbitration agreement 

is supported by substantial evidence, because without a copy of 

the documents, she did not have any opportunity after the

documents were signed to learn their contents and provide 

consent through her actions. 

The cases relied on by Foothill are easily distinguished, 

because none involved enforcement by a party who was fully 

aware that the signatory could not read English and did not 

know what she was signing. For example, in Randas, supra, the 

appellate court enforced a liability waiver that Randas had 

signed, even though she could not read English. (Randas, supra, 

17 Cal.App.4th at p. 160.) The court noted that the release stated 

she had read it, and the other contracting party had no reason to 

suspect Randas did not or could not read the release that she 
11

signed. (Id. at p. 163.) In contrast, in the instant case, the 

evidence established that Foothill was well aware Jimenez could 

not read the arbitration agreement. Jimenez acted diligently by 

inquiring about getting a translation, but Foothill did not allow 

an opportunity to obtain one. Based on the evidence in this case, 

Foothill cannot claim to believe that Jimenez’s signature 

manifested assent to the terms of the arbitration agreement, 

when Foothill knew that she had no idea what she was signing.

The case of Caballero, supra, 69 Cal.App.5th 512, is 

similarly distinguishable. In Caballero, the appellate court 

enforced an arbitration agreement that Caballero signed, even 

though he could not read English and the agreement was not 

explained to him before he signed it. (Id. at pp. 516–517.) The 

custom and practice of the Premier Care facility was to translate 

and explain the facility’s arbitration agreement when patients or 

their representatives appeared not to understand English. (Ibid.) 

The court found Caballero’s signature manifested his agreement 

to the terms of the document. (Id. at pp. 518–519.) The court 

noted, however, that there was no evidence Caballero had asked 

any employee of Premier Care for a Spanish version of the 

agreement or assistance in understanding the English version. 

(Ibid.) “On this record, Caballero’s failure to take steps to learn 

the contents of the agreement is attributable to his own 

negligence and may not be imputed to Premier Care.” (Ibid.) In 

contrast, in the present case, Jimenez did not simply sign a 

document that she could not read. She asked for a translation of 

the document from Foothill. When told there was no written 

translation, she sought permission to take it home so that her 

daughter could translate it. Foothill refused the request and

required her to sign the document before the end of the day in 
12

order to return to her job. Foothill knew that Jimenez did not 

understand the document, did not volunteer to translate it, and 

refused her request to take it home to obtain a translation. No

reasonable person who was aware that Jimenez could not read or

understand the agreement could believe from her signature alone 

that she assented to its terms, forming a contract.

DISPOSITION

The order denying the petition to compel arbitration is 

affirmed. Respondent Lillian Jimenez is awarded her costs on 

appeal.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.