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Filed 11/22/21 Schwendeman v. Travel Staff CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

CONNIE SCHWENDEMAN,

Plaintiff and Appellant,

v.

TRAVEL STAFF, LLC et al.,

Defendants and Respondents.

 A159147

 (Contra Costa County

 Super. Ct. No. MSC1801132)

As part of appellant Connie Schwendeman’s employment as a traveling 

nurse, she signed an arbitration agreement with respondent Travel Staff 

LLC. She later sued Travel Staff and respondents Cross Country Healthcare, 

Inc. and Cross Country Staffing, Inc., which were not signatories to the 

arbitration agreement.1 Cross Country filed a motion to compel arbitration, 

which the trial court granted. Schwendeman argues that she should not be 

forced to arbitrate with nonparties to the arbitration agreement. Because the 

trial court applied well settled exceptions to the requirement that only 

signatories to an arbitration may compel arbitration, we affirm.

1 We sometimes refer to these two respondents collectively in the 

singular as “Cross Country.”
2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Travel Staff “provides healthcare staffing and workforce management 

solutions by offering temporary placement of travel nurses.” Schwendeman 

is a registered nurse. She worked as a “Traveler” from December 2016 to 

April 2017 in Los Angeles and then from April to July 2017 in Walnut Creek. 

The operative complaint alleges that Travel Staff “does not actually employ 

Travelers,” and that Travel Staff has no supervisors or managers. Instead, 

according to the complaint, Travel Staff is designated as “the nominal 

employer,” but Cross Country Healthcare, Inc. and Cross Country Staffing, 

Inc. are “the actual employers of Travelers because they exercise control over 

Travelers’ wages, hours, and working conditions.” 

On March 23, 2017, while Schwendeman was working as a travel 

nurse, she electronically executed (using a program called “DocuSign”) an 

acknowledgement of receipt of a 2017 Cross Country Staffing document titled 

“Employment Terms & Conditions” (Terms and Conditions Booklet). The 

booklet contained a section titled “XXVI. Miscellaneous,” providing in part 

that “[a]ny and all disputes arising under this Agreement or in any way 

related to the relationship between the Company and you shall be governed 

by the laws of the State of Florida regardless of where your services are 

performed. The jurisdiction and venue of such disputes shall reside 

exclusively in the Judicial Circuit in and for Palm Beach County, Florida 

without regard to its principles of conflicts of law.” Although the record 

contains later versions of the booklet with the same section, Schwendeman 

did not sign acknowledgements of any of these later versions. 

Also on March 23, 2017, shortly after she signed the acknowledgment 

of having received the Terms and Conditions Booklet, Schwendeman
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electronically executed an arbitration agreement with Travel Staff. Travel 

Staff is identified in the agreement as “A Cross Country Staffing Company.” 

The agreement provides in relevant part that Travel Staff and Schwendeman 

“agree that binding arbitration shall be the exclusive remedy for all claims 

between them, including employment-related or other disputes involving 

Travel Staff clients and vendors. Final and binding arbitration before a

single, neutral arbitrator shall be the exclusive remedy for any covered claim. 

A ‘covered claim’ is any claim (except a claim that by law is non-arbitrable) 

now existing or arising in the future, including but not limited to a claim for: 

breach of contract; violation of any provision of the California Labor Code or a 

Wage Order; unpaid expenses or wages; unpaid compensation or penalties for 

missed meal or rest breaks; wrongful termination; unfair competition; or 

discrimination, harassment or unlawful retaliation.” The agreement further 

provides that “[e]ach party also waives the right to bring, maintain, 

participate in, or receive money from, any class, collective, or representative 

proceeding, whether in arbitration or otherwise.” Schwendeman does not in 

this appeal challenge the agreement’s validity or enforceability, and it is 

undisputed that Cross Country was not a signatory to the agreement. 

Schwendeman stopped working as a Traveler a few months after 

having signed the arbitration agreement. A little over a year later, in 

June 2018, she sued Travel Staff. The complaint does not appear in the 

record on appeal, but Schwendeman apparently alleged individual causes of 

action for wage-and-hour violations (Labor Code, §§ 558, 1197.1)2 as well as 

claims under the Labor Code Private Attorneys General Act of 2004 (§ 2698 

et seq., PAGA). Travel Staff filed a petition to compel arbitration, and the 

2 All statutory references are to the Labor Code unless otherwise 

specified.
4

trial court ordered Schwendeman to arbitrate her individual claim for unpaid 

wages. Schwendeman apparently abandoned that claim. 

Then in August 2019, Schwendeman filed a first amended complaint, 

adding both Cross Country entities as defendants. The complaint purported 

to be a class action lawsuit against Cross Country, which was alleged to have 

implemented the policies that gave rise to the Labor Code violations listed in 

the complaint. Schwendeman alleged that Cross Country failed to pay 

overtime (§§ 510, 1194), failed to furnish accurate wage statements (§ 226), 

willfully failed to pay wages owed to a discharged employee (§ 203), and 

engaged in unfair business practices (Bus. & Prof. Code, § 17200 et seq.). 

Schwendeman also again alleged a PAGA cause of action against Travel 

Staff. 

Cross Country filed a petition to compel arbitration and to dismiss or 

stay proceedings. It argued both that (1) Schwendeman was estopped from 

avoiding arbitration because her class claims against Cross Country arose 

out of her employment with Travel Staff, and that (2) Cross Country could 

enforce the Travel Staff arbitration agreement as a result of agency 

principles. Schwendeman opposed the petition. 

The trial court agreed with Cross Country and granted the petition. It 

thus ordered Schwendeman to arbitrate her individual claims against Cross 

Country, and it dismissed all of her putative class action claims against Cross 

Country. Because that left only Schwendeman’s claim against Travel Staff, 
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the court dismissed all claims against Cross Country and stayed the 

remaining claim against Travel Staff. Schwendeman appealed.3

II.

DISCUSSION

Schwendeman contends that she cannot be compelled to arbitrate her 

claims against Cross Country because the Cross Country entities were not 

parties to the arbitration agreement with Travel Staff. She is mistaken.

Schwendeman is correct that “the general rule is ‘one must be a party 

to an arbitration agreement to be bound by it or invoke it.’ ” (Garcia v. Pexco, 

LLC (2017) 11 Cal.App.5th 782, 785 (Garcia).) But, as the trial court found,

two exceptions to that rule apply here, one arising under equitable-estoppel 

principles and the other arising under agency principles.

We begin with the equitable-estoppel exception. “Under this exception, 

‘a nonsignatory defendant may invoke an arbitration clause to compel a 

signatory plaintiff to arbitrate its claim when the causes of action against the 

nonsignatory are “intimately founded in and intertwined” with the 

underlying contract obligations.’ [Citation.] The doctrine applies where the 

claims are ‘ “ ‘based on the same facts and are inherently inseparable’ ” from 

3 “Orders granting motions to compel arbitration are generally not 

immediately appealable. [Citations.] Such orders are normally subject to 

review only on appeal from the final judgment. (Code Civ. Proc., §§ 906, 

1294.2; [citation].)” (Nelsen v. Legacy Partners Residential, Inc. (2012) 

207 Cal.App.4th 1115, 1121–1122.) Schwendeman contends that the order 

granting arbitration is appealable because it eliminated Cross Country from 

the action and thus is final as to those entities and because the elimination of 

the putative class claims made the order appealable under the “death knell 

doctrine.” Respondents do not challenge the appealability of the order. We 

need not decide the issue because even if the order were not appealable we 

would exercise our discretion to treat the appeal as a petition for a writ of 

mandate. (Id. at p. 1123.)
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the arbitrable claims against signatory defendants.’ ” (Garcia, supra, 

11 Cal.App.5th at p. 786.)

Garcia, which was cited by the trial court in its order compelling 

arbitration, is on point and directs the outcome in this case. There, a 

temporary staffing company hired an hourly employee, who signed an 

arbitration agreement providing that binding arbitration would determine 

“any dispute” between the company and the employee. (Garcia, supra, 

11 Cal.App.5th at p. 784.) The agreement defined arbitrable disputes as 

including “those regarding wages, vacation pay, sick time pay, overtime pay, 

state and federal employment laws and regulation,” including specific federal 

statutes. (Ibid.) The employee then was assigned to work for a separate 

company. (Ibid.) He later sued both the staffing company and the company 

to which he had been assigned for Labor Code violations and unfair business 

practices regarding payment of his wages during his assignment to the 

company. (Id. at p. 785.) Each cause of action in the operative complaint was 

alleged against both companies, and both companies moved to compel 

arbitration. (Ibid.) The trial court granted the motion, and the Court of 

Appeal affirmed. (Id. at pp. 785, 789.) The court concluded that all of the 

employee’s claims were “intimately founded in and intertwined with his 

employment relationship with [the staffing company], which [wa]s governed 

by the employment agreement compelling arbitration.” (Id. at p. 787; see also

Franklin v. Community Regional Medical Center (9th Cir. 2021) 998 F.3d 

867, 871–872 [Garcia required that travel nurse arbitrate claims with 

nonsignatory hospital where they were intertwined with employment 

contract with staffing agency].)

Likewise here, Schwendeman’s arbitration agreement with Travel Staff 

provides that it shall cover “all claims between them, including employment-
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related or other disputes involving Travel Staff clients and vendors.” (Italics 

added.) Because Schwendeman’s employment relationship with Cross 

Country arose because of her relationship with Travel Staff, her causes of 

action against Cross Country could not be more “founded in and intertwined 

with [her] employment relationship with” Travel Staff. (Garcia, supra, 

11 Cal.App.5th at p. 787.) Schwendeman contends that equitable estoppel 

does not apply because the arbitration clause was not as broadly worded as 

the one in Garcia. Instead, according to Schwendeman, the clause expressly 

applied only to claims “between them” (i.e., Schwendeman and Travel Staff). 

But she omits the additional language that the agreement covers disputes 

“between them, including employment-related or other disputes involving 

Travel Staff clients and vendors.” (Italics added.) This language specifically 

contemplated that parties other than Travel Staff would be covered by the 

agreement, and it did not, as appellant’s counsel insisted at oral argument, 

rule out Schwendeman’s employment claims against Cross Country. Under 

these circumstances, the trial court properly found that the equitableestoppel exception to the rule that one must ordinarily be a party to an 

arbitration agreement to be bound by it applies.

The trial court also properly found that a second exception to the 

general rule, one based on agency principles, applies. “The agency exception

is another exception to the general rule that only a party to an arbitration 

agreement may enforce it. [Citation.] The exception applies, and a defendant 

may enforce the arbitration agreement, ‘when a plaintiff alleges a defendant 

acted as an agent of a party to an arbitration agreement . . . .’ ” (Garcia, 

supra, 11 Cal.App.5th at p. 788; see also Dryer v. Los Angeles Rams (1985) 

40 Cal.3d 406, 418 [where individual defendants were not signatories to 

arbitration agreement but were alleged to be acting as agents of signatory, 
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they were “entitled to the benefit of the arbitration provisions”].) In Garcia, 

the employee alleged that the defendants were acting as agents of one 

another as joint employers, and each cause of action alleged identical claims 

against all defendants without distinction. (Garcia, at p. 788.) The court 

held that the agency exception thus applied. (Ibid.) Likewise here, 

Schwendeman’s first amended complaint alleged that Cross Country 

“designate[d]” Travel Staff as a nominal employer and that Travel Staff 

“relie[d] exclusively on [the Cross Country entities] for all services related to 

the employment of Travelers.” It further alleged that Cross Country “caused 

Travel Staff, LLC, acting on Cross Country’s behalf, to violate Labor Code 

sections 201 and 510.” (Italics added.)

In her briefing on appeal, Schwendeman does not directly address the 

agency exception. Instead, she argues that the trial court somehow conflated 

the issues of agency and alter ego and treated Travel Staff and the Cross 

Country entities “as one and the same entity under the arbitration 

agreement.” To be sure, “[a]gency and alter ego are two different and distinct 

concepts. In the case of an alter ego, the court pierces the corporate veil. In 

the case of an agency the corporate identity is preserved but the principal is 

held liable for the acts of its agent.” (Northern Natural Case Co. v. Superior 

Court (1976) 64 Cal.App.3d 983, 994.) But we disagree with Schwendeman’s 

contention that the trial court somehow failed to draw a distinction between 

the two principles. Agency and “veil-piercing/alter ego” are two separate

exceptions to the general rule that arbitration is a contractual right available 

only to those who have signed the agreement. (Boucher v. Alliance Title Co., 

Inc. (2005) 127 Cal.App.4th 262, 268 [noting that federal courts have 

identified five separate exceptions].)
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Schwendeman relies on Hogan v. SPAR Group, Inc. (1st Cir. 2019) 

914 F.3d 34, but that case actually supports the trial court’s order compelling 

arbitration. In Hogan, an employee signed an agreement that included an 

arbitration clause with a staffing company, which then assigned the 

employee to perform services for a retail-services provider. (Id. at p. 36.) The 

agreement was limited to disputes “between the Parties” (id. at pp. 37–38), 

which were “unambiguously defined” as the employee and the staffing 

company. (Id. at p. 41.) Although the two companies were affiliated with one 

another and the staffing company provided most of the retail-services 

provider’s workers, the court concluded that the retail-services company 

could not compel arbitration when the employee sued both companies 

because the arbitration clause was clearly limited to the two signatories. 

(Id. at pp. 36, 40.) Notably, the agreement elsewhere referred to the staffing 

company’s customers, but it omitted that reference in the arbitration clause. 

(Id. at p. 40.) The staffing company “could have easily modified the 

arbitration clause to make it applicable to” any dispute between the parties 

“ ‘and/or any [staffing company] customer,’ ” but did not do so. (Id. at p. 40.) 

Here, of course, the agreement specifically referred to Travel Staff “clients 

and vendors.” And while the defendant companies in Hogan “chose to 

conduct their business as separate corporate structures” (id. at p. 42), here 

the principal-agent relationship between Cross Country and Travel Staff was

conceded by Schwendeman who alleged that Cross Country designated Travel 

Staff as “the nominal employer” of travel nurses and thus controlled the 

Labor Code violations that allegedly occurred. The trial court here thus did 

not “disregard[]” respondents’ corporate forms or “deem[] . . . [them] to be one 

and the same under the arbitration agreement,” as Schwendeman argues, 
10

but followed the law as it applies to the corporate relationship Schwendeman 

alleged. 

Schwendeman’s other attempts to avoid arbitration likewise fail. She 

points to the fact that the Cross Country Terms and Conditions Booklet 

contained a “judicial forum clause.” She contends that because she signed 

the booklet on the same day as the arbitration agreement, the two documents 

must be construed together as one agreement. (Holguin v. Dish Network LLC

(2014) 229 Cal.App.4th 1310, 1320 [several papers relating to same subject 

matter and executed as parts of substantially one transaction are to be 

construed together as one contract, whether or not they expressly refer to one 

another].) Cross Country, by contrast, contends that because the Terms and 

Conditions Booklet provided that the company “reserve[d] the right to 

change, add to, or delete any of [its] provisions . . . at any time,” and 

Schwendeman signed the arbitration agreement after she signed an 

acknowledgement of the booklet, the arbitration agreement “superseded” the 

forum-selection clause. 

We do not sanction an employer having an employee sign two 

conflicting documents on the same day and later claiming that a provision in 

one of those documents has no effect because of the order in which the 

documents were signed. But it is not clear to us that the two documents here 

are in fact as inconsistent as Schwendeman insists. The Terms and 

Conditions Booklet states that the “jurisdiction and venue of . . . disputes . . . 

shall reside exclusively in the Judicial Circuit in and for Palm Beach County, 

Florida.” This language specifies a location for the resolution of disputes but 
11

does not with certainty preclude arbitration in that location.

4 This is 

distinguishable from language in a case relied on by Schwendeman, where an 

arbitration agreement conflicted with a membership agreement that provided 

that any dispute would be brought “in the state and federal courts” in Salt 

Lake City, Utah. (O’Shaughnessy v. Young Living Essential Oils, L.C.

(5th Cir., April 28, 2020, No. 19-51169) 2020 U.S.App. Lexis 14081, italics 

added.) In any event, we agree with Cross Country that even if the forum 

clause applied, that would not benefit Schwendeman in this action because 

the clause stated that any dispute would be resolved in Florida using Florida 

law. Schwendeman’s argument that her agreement with Cross Country 

contemplates the right to sue in court falls flat since she has sued in a 

different state than the one identified in the agreement. True, if we were to 

find the arbitration agreement unenforceable, Schwendeman would be free to 

argue on remand that forcing her to litigate in Florida would diminish her 

unwaivable statutory rights (e.g., Verdugo v. Alliantgroup, L.P. (2015) 

237 Cal.App.4th 141, 154–155), but we decline to do so.

Finally, we reject Schwendeman’s argument that the trial court’s 

conclusion conflicts with the Federal Arbitration Act (FAA, 9 U.S.C. §§ 1–16). 

It is of course true, as Schwendeman notes, that one of the FAA’s 

4 At oral argument, Schwendeman’s counsel asserted that trial courts 

in Florida are called judicial circuits and that the reference to “the Judicial 

Circuit in and for Palm Beach County, Florida” was thus necessarily a 

reference to a judicial forum. (Cf. Bach v. Vladigor Investments, Inc. (Fla. 

Ct.App. 2021) 325 So.3d 41 [appeal of order “from the Circuit Court for the 

Fifteenth Judicial Circuit, Palm Beach County”].) While we do not have the 

entire employee handbook and believe a plausible argument could still be 

made that the language allows parties to arbitrate in Palm Beach, we agree 

that the language of the booklet suggest that disputes would be resolved in a 

Florida court. Still, we cannot agree that this language overrides the more 

specific and unambiguous arbitration agreement. 
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foundational principles is that arbitration is a matter of consent and that 

courts must enforce arbitration agreements according to their terms. (Lamps 

Plus, Inc. v. Varela (2019) __ U.S. __, __ [139 S.Ct. 1407, 1412, 1415].) But 

“ ‘[t]he United States Supreme Court has held that a litigant who is not a 

party to an arbitration agreement may invoke arbitration under the FAA if 

the relevant state contract law allows the litigant to enforce the agreement.’ ” 

(Franklin v. Community Regional Medical Center, supra, 998 F.3d at p. 870.) 

Here, state law contemplates arbitration for nonsignatories under certain 

circumstances that were met here. This case is thus distinguishable from 

Lamps Plus, where the court held that California’s doctrine of contra 

proferentem (where ambiguity in a contract should be construed against the 

drafter) should not be used to interpret an ambiguous contract term as 

requiring class arbitration. (Lamps Plus, at pp. 1417–1418.)

We recognize that if the facts alleged in Schwendeman’s complaint are 

true, compelling her to arbitrate without resort to a class remedy in court 

may deprive her of any meaningful recovery. This may be what motivated 

lawmakers to enact section 432.6, which bars employers from requiring 

employees to consent to arbitration as a condition of employment. (E.g., 

Chamber of Commerce of the United States v. Bonta (9th Cir., Sept. 15, 2021, 

No. 20-15291) __ F.4th __, 2021 U.S.App. Lexis 27659.) The statute applies 

only to employment contracts entered into, modified, or extended on or after 

January 1, 2020 (§ 432.6, subd. (h)), and thus does not apply to 

Schwendeman’s circumstances. And even if it did, the executed arbitration 

agreement would still be valid. (§ 432.6, subd. (f).)

III.

DISPOSITION

The trial court’s order is affirmed. Respondents shall recover their 

costs on appeal.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

Schwendeman v. Travel Staff LLC et al. A159147