Filed 4/26/13 Tamayo v. Cordevalle Golf Club CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SIXTH APPELLATE DISTRICT

ANA TAMAYO,

Plaintiff, Cross-Defendant and 

Respondent,

v.

CORDEVALLE GOLF CLUB, LLC,

Defendant and Appellant;

CORDEVALLE, L.P.,

Defendant, Cross-Complainant and 

Appellant.

 H037983

 (Santa Clara County

 Super. Ct. No. CV208862)

I. INTRODUCTION

Plaintiff Ana Tamayo filed an action alleging employment-related claims against 

defendants Cordevalle Golf Club, LLC and Cordevalle, L.P. Defendants filed a motion 

to compel arbitration, arguing that Tamayo‘s claims fell within the scope of an arbitration 

agreement. The trial court denied the motion and defendants appeal. For the reasons 

stated below, we conclude that the parties did not enter into a binding arbitration 

agreement, and therefore we will affirm the trial court‘s order denying the motion to 

compel arbitration.
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II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint

In 2011, Tamayo filed a complaint against defendants alleging employmentrelated claims under Government Code section 12940. According to the complaint, 

Tamayo was hired by Cordevalle Golf Club, LLC as a human resources administrative 

assistant in 2007. Tamayo alleges she suffered retaliation at work, including the 

termination of her employment in 2011, for providing deposition testimony in support of 

another employee, Salvador Velasco, who had claimed discrimination at work.

Both defendants filed an answer, and defendant Cordevalle, L.P. also filed a crosscomplaint against Tamayo. According to these pleadings, Cordevalle, L.P. was 

Tamayo‘s employer and the ―successor entity‖ to Cordevalle Golf Club, LLC. In the 

cross-complaint, which includes statutory and tort claims against Tamayo, Cordevalle, 

L.P. alleges that Tamayo accessed her supervisor‘s email account without authorization, 

that such actions breached company policy, and that she was accordingly terminated.

B. The Motion to Compel Arbitration

The defendants also filed a motion to compel arbitration and to stay or dismiss the 

action. In the motion, defendants contended that the parties had a written agreement to 

arbitrate, that all of the claims in Tamayo‘s complaint were subject to arbitration under 

the agreement, and that the agreement was not unconscionable. According to defendants, 

the arbitration agreement was included in a ―Guidebook,‖ which was given to all 

employees. Tamayo received the Guidebook two days before she started working for 

defendants. Defendants contended that Tamayo signed an acknowledgment of receipt of 

the Guidebook ―wherein she consented to the arbitration of any controversy concerning 

her employment.‖ Defendants further contended that Tamayo signed a ―New Hire 

Checklist‖ in which she acknowledged receipt of the arbitration agreement. In support of 

the motion, defendants provided a declaration from the managing director of the resort 

where Tamayo had worked, excerpts from the Guidebook, Tamayo‘s signed 
3

acknowledgement concerning the Guidebook, and the New Hire Checklist that she 

signed.

1. The arbitration provision in the Guidebook

The Guidebook contains the following arbitration provision: ―Arbitration [¶] 

Any and all claims or controversies between you and the Company, relating to your 

employment with the Company, or termination thereof, including claims for breach of 

contract, tort, employment discrimination (including unlawful harassment), and any 

violation of any state or federal law shall be resolved by arbitration before a neutral 

arbitrator in accordance with the then applicable National Rules for the Resolution of 

Employment Disputes of the American Arbitration Association, including adequate 

discovery by the parties. However, claims under applicable workers‘ compensation laws 

shall not be subject to arbitration. [¶] The Company shall pay the fees and costs of the 

arbitrator. Each party shall pay for its own costs and attorney‘s fees, if any. However, if 

any party prevails on a statutory claim which affords the prevailing party attorney‘s fees, 

or if the arbitrator decides on some other basis that fees should be awarded to the 

prevailing party, then the arbitrator may award reasonable attorney‘s fees and costs to the 

prevailing party. The arbitrator shall set forth a written arbitration decision. The 

arbitrator shall have authority to award all damages that could be awarded in a court of 

law. [¶] THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF THE 

RIGHT TO A TRIAL BY JURY OF ANY MATTERS SUBJECT TO ARBITRATION.‖

2. The acknowledgment of receipt

Tamayo signed an acknowledgment of receipt, which is contained on the last page 

(page 70) of the Guidebook. The acknowledgment of receipt states: ―OUR CULTURE: 

A GUIDEBOOK [¶] ACKNOWLEDGEMENT OF RECEIPT [¶] I hereby 

acknowledge that I have received, read, and understand all of the information contained 

in Our Culture: A Guidebook (the  ̳Guide‘) of CordeValle. In consideration of my 
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employment by CordeValle, knowing that such employment is dependent upon my 

compliance with CordeValle‘s policies, I agree to abide by those policies at all times.‖

3. The New Hire Checklist

Tamayo also signed a New Hire Checklist, which states in part: ―The following 

information was provided, reviewed and/or completed: [¶] . . . [¶] 7. Arbitration 

Agreement [¶] . . . [¶] 18. Internal Guest Guidebook and Guidebook 

Acknowledgement [¶] . . . [¶] I have been provided with the information listed above 

and have had the opportunity to discuss this information with a Human Resources 

Representative.‖

C. Opposition to the Motion to Compel Arbitration

In opposition, Tamayo contended that there was no arbitration agreement between 

the parties, and that the arbitration provision was otherwise unenforceable because it was 

unconscionable. Regarding the nonexistence of an arbitration agreement, Tamayo 

contended that the first page of the Guidebook contained ―numerous disclaimers‖ that 

―defeat any notion that the Guidebook could objectively be understood to create a 

binding contract of any kind.‖ Tamayo further contended that her signed 

acknowledgement of receipt of the Guidebook established only that she agreed to abide 

by employer ―policies,‖ and that the arbitration provision or purported arbitration contract 

in the Guidebook could not be construed to constitute such a policy. Tamayo also 

contended that the New Hire Checklist she signed contained separate references to an 

arbitration agreement and the Guidebook/acknowledgement. Thus, according to Tamayo, 

the checklist suggested there was a stand-alone arbitration agreement, which her 

employer had used in the past and which Tamayo never received or executed, rather than 

an arbitration agreement contained in the Guidebook.

Alternatively, assuming the parties had formed an agreement to arbitrate, Tamayo 

contended that the agreement was procedurally and substantively unconscionable. 

Regarding procedural unconscionability, Tamayo contended the arbitration agreement 
5

was a contract of adhesion because all employees were given the same agreement, 

Tamayo had no bargaining power, and her assent to arbitration was a condition precedent 

to the offer of employment. Further, the arbitration provision was on page 31 of the 

70-page Guidebook, and the provision was not pointed out to her or explained to her. In 

addition, the arbitration provision referred to certain rules of the American Arbitration 

Association (AAA), but Tamayo was not provided with a copy of those rules. Regarding 

substantive unconscionability, Tamayo contended the arbitration agreement required only 

her to arbitrate and not the employer, based on the disclaimers on the first page of the 

Guidebook and the language of her signed acknowledgement of receipt. Further, the 

Guidebook provided that the employer could unilaterally modify or revoke the policies 

and procedures contained therein. Tamayo contended that the offending provisions could 

not be severed from the agreement.

In opposition to the motion to compel arbitration, Tamayo filed a copy of the 

70-page Guidebook that she had received during the hiring process, a supporting 

declaration, a declaration from counsel, and a request for judicial notice.

1. The first page of the Guidebook

The first page of the Guidebook states as follows: ―CORDEVALLE [¶] . . . [¶] 

Our Culture: A Guidebook [¶] All organizations and families have guidelines by which 

they live and behave. This guidebook outlines our culture as a company and the 

guidelines by which we must agree to work. [¶] Our Culture: A Guidebook (―Guide‖) 

summarizes the employment policies and procedures in effect at CordeValle, A 

Rosewood Resort. The Guide is effective immediately and is applicable to all Internal 

Guests regardless of their date of employment. CordeValle and/or Rosewood Hotels and 

Resorts (the  ̳Company‘) may from time to time unilaterally modify, revoke, suspend, 

terminate or change any of the policies and procedures contained in this Guide, in whole 

or in part. [¶] None of the procedures, policies, or benefits outlined in this Guide are 

intended to confer any rights or privileges upon Internal Guests, or to entitle Internal 
6

Guests to be or remain employed. This Guide is presented as a matter of information 

only, and does not constitute a contract of employment; it does not create property rights 

in an Internal Guest‘s job; nor is it an inflexible set of rules and regulations. Internal 

Guests of the Company are  ̳at will.‘ This means that employment is not guaranteed for 

any period of time, and can be terminated by either the Internal Guest or the Company at 

any time, and for any or no reason.‖

2. The declarations by Tamayo and counsel

In her declaration, Tamayo stated that she had worked in defendants‘ human 

resources department, and that ―[t]he Guidebook‘s use of the term  ̳Internal Guests‘ refers 

to CordeValle employees.‖ She further stated that she was not provided with an 

opportunity to negotiate any of the content of the Guidebook, her ―signing of the 

Guidebook was required in order for [her] to gain employment with CordeValle,‖ and she 

was told words to the effect that she ―  ̳need[ed] to sign the Guidebook as a condition of 

employment.‘ ‖ Further, no one pointed out the arbitration provision to her, and she was 

not provided with a copy of any arbitration rules. With respect to the New Hire Checklist 

and its reference to an arbitration agreement in item number seven, Tamayo stated that no 

one spoke to her about or provided her with such a separate agreement.

Tamayo‘s counsel indicated in a declaration that he was the attorney of record for 

Salvador Velasco in Velasco‘s separate lawsuit against Cordevalle Golf Club. In that 

lawsuit, ―CordeValle‖ had produced Velasco‘s personnel file, and it contained a standalone arbitration agreement that Velasco had signed in 2004. Tamayo indicated in her 

declaration that she never received such a stand-alone arbitration agreement during her 

employment.

In the request for judicial notice, Tamayo sought judicial notice of her complaint; 

Cordevalle, L.P.‘s cross-complaint; and AAA‘s ―Employment Arbitration Rules and 

Mediation Procedures,‖ a more than 60-page document apparently effective 2010.
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D. Reply in Support of the Motion to Compel Arbitration

In their reply brief, defendants pointed to Tamayo‘s admission in her declaration 

that she was told she had to sign the Guidebook as a condition of employment. 

Defendants contended that Tamayo ―necessarily assented‖ to the arbitration agreement 

―by accepting employment . . . under the terms of the Guidebook containing the 

arbitration provision.‖ Defendants further contended that, even if the agreement was 

procedurally unconscionable, it was not substantively unconscionable, and therefore the 

agreement was enforceable.

E. The Trial Court’s Order

On February 21, 2012, a hearing was held on defendants‘ motion to compel 

arbitration. The trial court observed that the ―purported arbitration agreement‖ was a 

―half page‖ long, contained within a 70-page document, and not signed by the employer. 

The court did not believe there was a ―meeting of the minds‖ by the parties with respect 

to an agreement to arbitrate. That same day, the court filed an order denying defendants‘ 

motion to compel arbitration and stay the action. In the written order, the trial court did 

not explain the basis for the denial of the motion.

III. DISCUSSION

Defendants appeal from the order denying their motion to compel arbitration and 

stay the action. An order denying a motion to compel arbitration is appealable under 

Code of Civil Procedure section 1294, subdivision (a).1

On appeal, defendants argue that the trial court erred in denying their motion. 

First, defendants contend that the parties assented to mandatory arbitration. Among other 

evidence, defendants point to the Guidebook, which contains the arbitration provision, 

and to the signed acknowledgment form, in which Tamayo agreed to the policies 

 

1 All statutory references hereafter are to the Code of Civil Procedure unless 

otherwise indicated.
8

contained in the Guidebook. Second, defendants contend that the arbitration agreement 

has only a ―minor degree‖ of procedural unconscionability and, in the absence of any 

substantive unconscionability, the agreement is enforceable.

Before addressing the substance of defendants‘ contentions, we will briefly review 

the statutory scheme that governs private arbitration in California and the standard of 

review that applies to an order denying a motion to compel arbitration.

A. The Statutory Scheme and the Standard of Review

―Title 9 of the Code of Civil Procedure . . . represents a comprehensive statutory 

scheme regulating private arbitration in this state. (§ 1280 et seq.)‖ (Moncharsh v. Heily 

& Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) ―The fundamental premise of the scheme is 

that  ̳[a] written agreement to submit [either a present or future controversy] to 

arbitration . . . is valid, enforceable and irrevocable, save upon such grounds as exist for 

the revocation of any contract.‘ ([§] 1281.)‖ (Vanderberg v. Superior Court (1999) 21 

Cal.4th 815, 830, fn. omitted.)

―Through this detailed statutory scheme, the Legislature has expressed a  ̳strong 

public policy in favor of arbitration as a speedy and relatively inexpensive means of 

dispute resolution.‘ [Citations.] Consequently, courts will  ̳ ―indulge in every 

intendment to give effect to such proceedings.‖ ‘ [Citations.]‖ (Moncharsh, supra, 3 

Cal.4th at p. 9.) Nevertheless, the public policy is not absolute. ―  ̳[T]he policy favoring 

arbitration cannot displace the necessity for a voluntary agreement to arbitrate.‘ 

[Citations.]‖ (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739; accord Mission 

Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 

1146, 1153.)

Section 1281.2 provides for trial court enforcement of private arbitration 

agreements: ―On petition of a party to an arbitration agreement alleging the existence of 

a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate 

such controversy, the court shall order the petitioner and the respondent to arbitrate the 
9

controversy if it determines that an agreement to arbitrate the controversy exists, unless it 

determines that: [¶] . . . [¶] Grounds exist for the revocation of the agreement.‖ 

(§ 1281.2, subd. (b).) In the trial court, the party seeking arbitration bears the burden of 

proving the existence of an arbitration agreement by the preponderance of the evidence, 

and the party opposing arbitration bears the burden of proving by a preponderance of the 

evidence any defense, such as unconscionability. (Pinnacle Museum Tower Assn. v. 

Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); Engalla 

v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (Engalla).) In the 

summary proceedings under section 1281.2, ―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, 

supra, at p. 972.)

The standard of review where the trial court resolved disputed facts in ruling on a 

motion to compel arbitration is substantial evidence. (Brown v. Wells Fargo Bank, NA 

(2008) 168 Cal.App.4th 938, 953.) Where the facts were undisputed, the standard of 

review is de novo. (Ibid.; Pinnacle, supra, 55 Cal.4th at p. 236.) If only a question of 

law is involved, the standard of review is also de novo. (Robertson v. Health Net of 

California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)

B. Absence of an Agreement to Arbitrate

We understand defendants to contend that Tamayo‘s signature on the Guidebook‘s 

acknowledgment of receipt reflects her consent to the arbitration provision contained in 

the Guidebook. Defendants further contend that it is irrelevant whether a separate standalone arbitration agreement had been given to employees in the past, and that there is no 

evidence that defendants had been using a separate stand-alone agreement at the time 

Tamayo became employed.

Tamayo argues that the ―disclaimers‖ contained in the first page of the Guidebook 

―defeat any notion that the Guidebook could objectively be understood to create a 
10

binding contract of any kind.‖ She further contends that, although she agreed to abide by 

defendant‘s policies when she signed the Guidebook‘s acknowledgement of receipt, she 

never signed or initialed the arbitration provision itself. She contends that the New Hire 

Checklist and Salvador Velasco‘s stand-alone arbitration agreement establish that a 

separate stand-alone arbitration contract was intended for her, but that she never received 

or signed such a contract.

―In California,  ̳[g]eneral principles of contract law determine whether the parties 

have entered a binding agreement to arbitrate.‘ [Citations.]‖ (Pinnacle, supra, 55 Cal.4th 

at p. 236.) ―An essential element of any contract is the consent of the parties, or mutual 

assent. (Civ. Code, §§ 1550, subd. 2, 1565, subd. 2.)‖ (Donovan v. RRL Corp. (2001) 26 

Cal.4th 261, 270 (Donovan).) Further, the consent of the parties to a contract must be 

communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) ―Mutual assent 

is determined under an objective standard applied to the outward manifestations or 

expressions of the parties, i.e., the reasonable meaning of their words and acts, and not 

their unexpressed intentions or understandings. [Citation.]‖ (Alexander v. Codemasters 

Group Limited (2002) 104 Cal.App.4th 129, 141 (Alexander).)

―Mutual assent usually is manifested by an offer communicated to the offeree and 

an acceptance communicated to the offeror. [Citation.]  ̳ ―  ̳An offer is the manifestation 

of willingness to enter into a bargain, so made as to justify another person in 

understanding that his assent to that bargain is invited and will conclude it.‘ ‖ 

[Citations.]‘ [Citation.] . . . The objective manifestation of the party‘s assent ordinarily 

controls, and the pertinent inquiry is whether the individual to whom the communication 

was made had reason to believe that it was intended as an offer. [Citations.]‖ (Donovan, 

supra, 26 Cal.4th at pp. 270-271.)

―Generally, an arbitration agreement must be memorialized in writing. [Citation.] 

A party‘s acceptance of an agreement to arbitrate may be express, as where a party signs 

the agreement. A signed agreement is not necessary, however, and a party‘s acceptance 
11

may be implied in fact (e.g., [Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416,] 

420 [employee‘s continued employment constitutes acceptance of an arbitration 

agreement proposed by the employer]) . . . . An arbitration clause within a contract may 

be binding on a party even if the party never actually read the clause. [Citation.]‖ 

(Pinnacle, supra, 55 Cal.4th at p. 236.)

In this case, defendants fail to show that the parties entered into a binding 

agreement to arbitrate. The last page of the Guidebook, which is Tamayo‘s signed 

acknowledgment of receipt, states that Tamayo has read and understands all of the 

information contained in the Guidebook. In the second sentence of the acknowledgement 

of receipt, Tamayo states: ―In consideration of my employment by CordeValle, knowing 

that such employment is dependent upon my compliance with CordeValle‘s policies, I 

agree to abide by those policies at all times.‖ (Italics added.) We understand defendants 

to contend that this page of the Guidebook indicates that the parties entered into a 

contract in which Tamayo agreed to abide by defendants‘ policies contained in the 

Guidebook, in exchange for employment by defendants.

The first page of the Guidebook states, however, that the Guidebook ―does not 

constitute a contract of employment.‖ The first page further states that ―[n]one of the 

procedures, policies, or benefits outlined in [the Guidebook] are intended to confer any 

rights or privileges [upon Tamayo], or to entitle [her] to be or remain employed.‖ 

Further, the Guidebook ―is presented as a matter of information only,‖ the Guidebook is 

not ―an inflexible set of rules and regulations,‖ and the policies and procedures contained 

in the Guidebook ―may from time to time‖ be ―unilaterally modif[ied], revoke[d], 

suspend[ed], terminate[d], or change[d]‖ by defendants. Although other language in the 

first page refers to the Guidebook as containing ―the guidelines by which we must agree 

to work,‖ the clear import of the first page is that defendants wanted each employee to 

comply with the provisions contained in the Guidebook, but they did not want those 

provisions, which might be unilaterally modified by defendants at any time, to give rise 
12

to any enforceable rights, contractual or otherwise, by the employee. In other words, 

defendants had no intent for themselves to be bound to a contract with an employee 

regarding employment, benefits, or anything else outlined in the Guidebook. Given this 

express purpose on page one concerning the content of the Guidebook, we determine that 

the acknowledgment of receipt on the last page cannot reasonably be construed as 

manifesting the consent of the parties to a contract, much less consent to a contract to 

arbitrate. Rather, the first and last pages of the Guidebook reflect the parties‘ 

understanding that Tamayo must comply with the policies in the Guidebook while 

employed by defendants, but that those policies did not give rise to any contractual rights.

On appeal, defendants focus primarily on the language in the acknowledgment of 

receipt to support their argument that the parties entered into an agreement to arbitrate. 

Defendants contend that, ―whether or not the Guidebook was intended to be a contract, 

the Guidebook Acknowledgment clearly is. By signing the Guidebook 

Acknowledgment, Tamayo agreed to be bound by the contents of the Guidebook – this is 

an enforceable promise.‖

However, in determining whether the parties consented to a contract containing an 

arbitration provision, we must necessarily consider other portions of the Guidebook in 

addition to the acknowledgement of receipt on page 70. The acknowledgment of receipt 

is a part of the Guidebook, and the acknowledgment of receipt makes reference to ―all of 

the information contained in‖ the Guidebook. As we have explained, the outward 

expressions of the parties as reflected in the first and last pages of the Guidebook do not 

manifest the mutual assent of the parties to an agreement to arbitrate. (See Alexander, 

supra, 104 Cal.App.4th at p. 141; Donovan, supra, 26 Cal.4th at pp. 270-271.)

Beyond the Guidebook, we are not persuaded that the separate New Hire Checklist 

establishes that the parties entered into an arbitration agreement. Defendants refer to the 

New Hire Checklist in their opening brief to support their argument that all the parties 

assented to an arbitration agreement. In a footnote in their reply brief, however, 
13

defendants state that they are not arguing that the checklist ―is an arbitration agreement, 

only that Tamayo was provided the New Hire Form, which indicates that she was 

provided information about arbitration (in this case in the Guidebook) . . . .‖ (Italics 

added.) The mere fact that Tamayo was provided with information about arbitration 

certainly does not establish that the parties entered into a binding arbitration agreement.

Defendants cite 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 

1199 (24 Hour Fitness), to support their contention that a signed acknowledgment 

concerning a personnel handbook may establish an employee‘s acceptance of an 

arbitration agreement contained in the handbook. 24 Hour Fitness does not help 

defendants in this case. In 24 Hour Fitness, the employee signed a personnel handbook 

acknowledgment that stated, ―  ̳I also read and specifically agree that if there is any 

dispute arising out of my employment as described in the section called ―Arbitration of 

Disputes‖ in the handbook, I will submit it exclusively to binding and final arbitration 

according to the procedures outlined in the ―Employment Arbitration Procedures 

Manual.‖ ‘ ‖ (Id. at p. 1205; see ibid., fn. 1.) The ―  ̳Arbitration of Disputes‘ ‖ section in 

the personnel handbook similarly provided: ―  ̳If any dispute arises from your 

employment with Nautilus, you and Nautilus agree that you both will submit it 

exclusively to final and binding arbitration. . . . [¶] We agree to settle the dispute 

according to the provisions of the California Code of Civil Procedure, starting at § 1280, 

or successor or replacement statutes. . . .‘ ‖ (Ibid., italics omitted.) The appellate court 

concluded that the employee had ―entered into a valid and enforceable agreement to 

arbitrate any disputes arising from her employment with Nautilus.‖ (Id. at p. 1215.) In 

contrast to the clear expression of an agreement to arbitrate in the handbook and the 

signed acknowledgment in 24 Hour Fitness, in this case as we have explained the 

Guidebook and acknowledgment form reflect that defendants did not intend to be 

contractually bound by the provisions contained in the Guidebook.
14

Defendants also cite Circuit City Stores, Inc. v. Najd (9th Cir. 2002) 294 F.3d 

1104 (Circuit City), to support their contention that the record reflects their assent to an 

arbitration agreement because they moved to compel its enforcement. We are not 

persuaded by defendants‘ reliance on Circuit City. In that case, the employer gave 

employees a ―  ̳Dispute Resolution Agreement‘ (the  ̳DRA‘)‖ which provided for binding 

arbitration of employment-related claims. (Id. at p. 1106.) The employees were allowed 

to opt out of the DRA by returning a form to the employer. The plaintiff employee 

acknowledged receipt of the material in writing but did not exercise his right to opt out. 

(Ibid.) A federal district court granted the employer‘s petition to compel arbitration of 

the employee‘s claims against the employer. On appeal, the employee argued that (1) the 

DRA was not supported by adequate consideration because the employer was not 

required to submit any of its claims to arbitration, and (2) the employee did not assent to 

the DRA because he did not affirmatively opt in to the program. (Id. at pp. 1108-1109.) 

The Ninth Circuit Court of Appeals rejected the employee‘s contentions. The court 

determined that the employer‘s ―promise to be bound by the arbitration process itself 

serves as adequate consideration.‖ (Id. at p. 1108.) Further, the court determined that the 

circumstances of the case permitted an inference that the employee had ―assented to the 

DRA by failing to exercise his right to opt out of the program.‖ (Id. at p. 1109.) There 

was no dispute in Circuit City that the employer had assented to the arbitration 

agreement. In contrast, the record in the present case fails to demonstrate that defendants 

intended to be contractually bound by the provisions contained in the Guidebook. As we 

have explained, the document containing the arbitration provision—the Guidebook—

expressly states that the document is not a contract, that it is presented as a matter of 

information only, and that it does not confer any rights upon the employee. In view of 

defendants‘ expressions to not be contractually bound by the provisions contained in the 

Guidebook, the record in this case does not show that the parties assented to an 

agreement to arbitrate.
15

In sum, we conclude that the parties did not enter into a binding agreement to 

arbitrate because no document contained in the record can be reasonably construed to 

manifest the mutual assent of the parties to an agreement to arbitrate. (Alexander, supra, 

104 Cal.App.4th at p. 141; Donovan, supra, 26 Cal.4th at pp. 270-271.) Accordingly, the 

trial court did not err in denying defendants‘ motion to compel arbitration and we will 

affirm the order. Having reached this conclusion, we need not address the other issues 

raised by defendants.

IV. DISPOSITION

The February 21, 2012 order denying the motion to compel arbitration is affirmed. 

Costs on appeal are awarded to plaintiff Ana Tamayo. 

___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MÁRQUEZ, J.