IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALICIA OLIVERA,

Respondent,

v.

CCS WASHINGTON JANITORIAL, 

INC., a Washington company,

Appellant.

No. 86076-3-I

 DIVISION ONE

UNPUBLISHED OPINION

CHUNG, J. — Alicia Olivera filed a lawsuit against her former employer, CCS 

Washington Janitorial, Inc. CCS moved to compel arbitration pursuant to an arbitration 

agreement included in Olivera’s new employee onboarding process. After an evidentiary 

hearing, the trial court denied the motion to compel due to insufficient evidence of 

mutual assent to support an enforceable arbitration agreement. On appeal, CCS argues 

the trial court improperly denied the motion after finding that Olivera had not signed the 

arbitration agreement. Because the court based its decision on lack of mutual assent, 

which CCS fails to challenge, we affirm. 

FACTS

Olivera applied for work at CCS. She is a native Spanish speaker who speaks 

little English and cannot read or write in English. Christian Mendoza, manager for CCS, 

spoke with Olivera in Spanish. He helped her set up an account in the CCS computer 
No. 86076-3-I/2

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system. The parties disagree as to whether Olivera completed the onboarding process 

and digitally signed her employment documents, including an arbitration agreement.

Olivera worked for CCS for approximately one year. She subsequently filed a 

class action complaint against CCS, alleging the company failed to provide proper rest 

and meal periods, violated overtime requirements, and willfully withheld wages from its 

employees. CCS filed a motion to compel arbitration of the claims pursuant to the 

arbitration agreement that Olivera allegedly signed when she was hired.

At an evidentiary hearing, the trial court heard testimony from Mendoza and 

Olivera. Mendoza testified that he was in charge of onboarding new hires. As part of the 

onboarding process, new hires are required to establish a password and personal 

identification number (PIN) for the computer system which only the new hire could 

access. New hires have the option to select Spanish as the language for the onboarding 

process. As part of the routine process, a new hire must review documents for all CCS 

policies including the arbitration agreement. The new hire must open a PDF file to view 

it and select “yes” or “no” after viewing the file. The system will not continue to the next 

document unless the new hire makes a selection. After reviewing the documents, the 

new hire enters the PIN “and that would electronically sign all of the documents.” The 

new hire will then watch training videos and Mendoza will take a photograph for their 

badge. 

Mendoza stated that he followed this process with Olivera. He could not recall 

whether Olivera used the CCS office computer or her phone to complete the onboarding 
No. 86076-3-I/3

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process. CCS produced Olivera’s digitally signed arbitration agreement from her 

employment file, documents signed after completing the training videos, and her 

photograph. 

Olivera testified that she met with Mendoza at CCS. She received the e-mail from 

the CCS computer system but did not understand what to do. Mendoza used her cell 

phone to help her with access, then told her to put in a password and PIN. Olivera said 

that she did not electronically sign any documents as part of her application with CCS. 

She did not recall seeing any of the policy documents, including the arbitration 

agreement. 

After argument by the parties, the trial court issued an oral ruling:

This is a classic conflict in testimony, and it comes down to who 

has the burden of proof. There were inconsistencies in Ms. Olivera’s 

testimony, and there were certainly some concerning-- the court was also 

concerned with the testimony from Mr. Mendoza, whose recall was spotty 

and inconsistent. 

The burden is to show that there was in fact mutual assent, and 

based on this complete record, I believe that that burden has not been 

met. 

This document, the arbitration agreement was actually drafted, 

created, and submitted by the defendant. Even though there was one 

expression in English by Ms. Olivera, the court is convinced on this record 

that her capacity to read, understand, and speak English is extremely 

limited. 

There are advantages to Ms. Olivera for having the arbitration 

agreement not considered valid, and there are advantages to the 

defendant for the arbitration agreement to be considered valid. 

Given that the burden of proof is on the party seeking to enforce the 

agreement to show that the agreement exists and that it is binding, it is my 

conclusion that the record fails to show that Ms. Olivera understood 

anything, even if she did sign it, and that there was no mutual assent.
No. 86076-3-I/4

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In its written order, the trial incorporated its oral ruling, concluding, “There is insufficient, 

inadequate evidence in the record to show that there was mutual assent required to 

create an enforceable arbitration agreement.” Because CCS had failed to meet its 

burden of proof, the court denied the motion to compel arbitration. 

CCS filed a motion for reconsideration, which the court also denied. The court’s 

order denying the motion for reconsideration set out information it had considered, 

including defendant’s initial burden of proof, “the presumptive vs. definitive effect of any 

signature to document,” “the nature of the signature: actual vs. electronic,” “the 

individual vs. block signature, i.e. the number of documents simultaneously for 

signature,” plaintiff’s language barrier, whether there was denial or failure of recollection 

by Olivera, “whether the record reflected any outward manifestation or confirmation of 

assent or agreement,” whether Olivera’s complaint or other materials acknowledged a 

contractually valid agreement, absence of mutual assent based on the record, and 

credibility of the witnesses.

CCS appeals. 

DISCUSSION

CCS contends the trial court erred by denying the motion to compel arbitration. 

We review de novo a trial court’s denial of a motion to compel arbitration. Weiss v. 

Lonnquist, 153 Wn. App. 502, 510, 224 P.3d 787 (2009). 

“Arbitration is a matter of contract.” Healy v. Seattle Rugby, LLC, 15 Wn. App. 2d 

539, 544, 476 P.3d 583 (2020). Parties cannot be compelled to arbitrate without an 

agreement. Id.; RCW 7.04A.070(1). When parties disagree about the existence of an 
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agreement, “the court shall proceed summarily to decide the issue.” RCW 7.04A.070(1). 

The threshold question is whether the parties entered into a valid agreement to 

arbitrate. Weiss, 153 Wn. App. at 511. 

A valid contract requires mutual assent to its essential terms, generally in the 

form of an offer and an acceptance. Id. But an express agreement is not required. 

Marcus & Millichap Real Est. Inv. Servs. of Seattle, Inc., v. Yates, Wood & MacDonald, 

Inc., 192 Wn. App. 465, 474, 369 P.3d 503 (2016). “Normally, the existence of mutual 

assent or a meeting of the minds is a question of fact.” Sea-Van Invs. Assocs. v. 

Hamilton, 125 Wn.2d 120, 126, 881 P.2d 1035 (1994). The burden of proving a contract 

is on the party asserting it, who must prove each essential fact, including the existence 

of a mutual intention. Saluteen-Maschersky v. Countrywide Funding Corp., 105 Wn. 

App. 846, 851, 22 P.3d 804 (2001); see also Jacob’s Meadow Owners Ass’n v. Plateau 

44 II, LLC, 139 Wn. App. 743, 765, 162 P.3d 1153 (2007) (“The burden of proving the 

existence of a contract is on the party asserting its existence.”).

CCS argues the trial court improperly denied the motion to compel arbitration, 

specifically assigning error to the court’s finding that Olivera did not sign the arbitration 

agreement. CCS also assigned error to the trial court’s “fail[ure] to consider CCS’s

routine practice testimony which confirmed that Olivera create[d] a [PIN] and used that

[PIN] to sign the Arbitration Agreement.” However, the trial court did not base its denial 

on Olivera’s failure to sign the arbitration agreement using a PIN or otherwise. Rather, 

the court found “that the record fails to show that Ms. Olivera understood anything, even 

if she did sign it, and that there was no mutual assent.” (Emphasis added.) Regardless 
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of whether Olivera signed the agreement, the court concluded that CCS did not meet its 

burden of demonstrating that Olivera “understood or assented to the arbitration 

agreement.” 

CCS failed to assign error to the trial court’s finding of fact that the record 

contained insufficient evidence to show mutual assent as required to create an 

enforceable arbitration agreement. Unchallenged findings of fact are verities on appeal. 

In re Est. of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). The finding of no mutual 

assent is, therefore, a verity on appeal. Without mutual assent, Olivera and CCS did not 

enter a valid and enforceable agreement to arbitration. The trial court did not err by 

denying the motion to compel arbitration. 

Olivera requests attorney fees on appeal under RAP 18.9, which provides the 

court with discretion to order a party to pay fees for filing a frivolous appeal. RAP 

18.9(a). We decline to exercise our discretion to award fees as a sanction.

Affirmed. 

WE CONCUR: