Reagan v. Centro de Salud de La Comunidad de San Ysidro CA4/1

Filed 10/26/26 Reagan v. Centro de Salud de La Comunidad de San Ysidro CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA ERICA REAGAN, D086073 Plaintiff and Respondent, (Super. Ct. No. 24CU021583C) v. CENTRO DE SALUD DE LA COMUNIDAD DE SAN YSIDRO, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Carolyn M. Caietti, Judge. Affirmed. Niddrie Addams Fuller Singh and Rupa G. Singh; Greene & Roberts, Maria C. Roberts and Lauren S. Cartwright for Defendant and Appellant. Bibiyan Law Group, David D. Bibiyan, Gayane Ghandilyan, Molly DeSario, Henry G. Glitz, Madison E. Gunning, and Zach Bierscheid for Plaintiff and Respondent.  INTRODUCTION After separating from her employment with Centro de Salud de La Comunidad de San Ysidro (SYHealth), Erica Reagan sued the company on behalf of herself and putative class members for various alleged Labor Code violations. SYHealth moved for an order compelling arbitration based on its company arbitration policies. The trial court denied SYHealth’s motion, finding that it had not proven the existence of a valid arbitration agreement to which Reagan had assented. SYHealth now appeals. Because it has failed to demonstrate any error on appeal, we affirm the court’s order. BACKGROUND Reagan began working for SYHealth in October 2021 as a medical coder lead. When Reagan started with SYHealth, she signed an acknowledgment of receipt of its employee handbook. The acknowledgement form stated the handbook contained an arbitration policy and that Reagan agreed “to read, familiarize [her]self with and to follow” SYHealth’s policies, including those included in the handbook. In turn, the handbook stated it “sets forth and summarizes the policies . . . that apply to all employees at SYHealth.” It advised that “SYHealth policies, including those set forth in this Handbook and training(s) provided to you are terms and conditions of your employment.” The handbook further explained it was “not a contract of employment for any length of time and all employees of SYHealth are employed on an at-will basis.” Section 202 of the handbook is identified as “BINDING EMPLOYMENT ARBITRATION.” It states: “SYHealth has adopted a stand- alone Binding Employment Arbitration Policy for all employment-related disputes, pursuant to the Federal Arbitration Act (FAA).” The Binding Employment Arbitration Policy is a term and condition of employment with 2 SYHealth that applies to all employees and is described in full in the stand- alone Binding Employment Arbitration Policy that has been provided to all employees and is also available on the SYHealth intranet.” It continues, “It is imperative that all SYHealth employees review the Binding Employment Arbitration Policy, as it is a new policy that applies to both SYHealth and all employees, and is a term and condition of employment that goes into effect on February 15, 2021. If there are questions regarding the Policy, the questions may be directed to the Human Resource Department. [¶] New employees will be provided with the Binding Employment Arbitration Policy as part of the on- boarding process.” Reagan also accessed a company intranet page with a link to the arbitration policy. This intranet page has an option to print or view a signed copy of the arbitration policy, if the employee has signed. It is not disputed that SYHealth has not produced a copy signed by Reagan. Then, on May 1, 2023, SYHealth sent a mass email to its employees notifying it had updated its employee handbook. This email stated employees were required to review the updated handbook and sign the acknowledgment form by May 12, 2023. Unlike the old handbook, which referenced a separate, stand-alone arbitration policy, the updated handbook included the arbitration policy as an addendum. Reagan accessed a company intranet page with a link to the updated handbook multiple times in May 2023 and one time each in December 2023 and May 2024. There is no evidence in the record, however, that she ever signed the updated handbook or an acknowledgment of receipt. In November 2024, Reagan filed her complaint against SYHealth. The following month, SYHealth moved for an order compelling arbitration. The 3 court held a hearing on the motion, after which it denied the motion on the ground that SYHealth had not proven the existence of an arbitration agreement to which the parties had mutually assented. First, the court found SYHealth’s 2021 employee handbook and arbitration policy did not create a binding arbitration agreement because the handbook stated it “ ‘is not intended to be and is not a contract (express or implied)’ ” and identified the arbitration policy as a stand-alone policy that “ ‘will be’ ” provided to employees separately and Reagan averred she did not see such a policy and did not recall signing or acknowledging an arbitration agreement. The court further explained Reagan did not sign the arbitration policy to indicate her acceptance or assent, and her acknowledged receipt of the handbook was insufficient to constitute implied consent to arbitrate. It also noted neither the handbook nor the arbitration policy contained contractual language stating her continued employment would be deemed voluntary assent to the arbitration policy. Similarly, the court found the 2023 updated handbook and arbitration policy did not establish an agreement to arbitrate. Again, the court noted the handbook stated it was not a contract of employment. The court further explained the handbook “does not reflect any signature, acceptance, acknowledgment or assent” by Reagan to the arbitration policy, despite SYHealth having notified its employees in the May 1, 2023 email that a signature was required. And it found that SYHealth had “not point[ed] to any language in the handbook or addendum that continuing to work will be deemed knowing and voluntary consent and acceptance of the arbitration agreement.” 4  DISCUSSION I. Applicable Law “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists[.]” (Code Civ. Proc., § 1281.2.) “Thus, when presented with a motion to compel arbitration, the court’s first task is to determine whether the parties have entered into an agreement to arbitrate their claims.” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674, 685.) “[T]he 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 v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) “Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.” (B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 942 [cleaned up].) Even where the relevant arbitration policy provides for the application of the FAA, courts apply state law contract principles when deciding whether an agreement to arbitrate exists. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944 (First Options of Chicago); see Cheng- Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 683 (Cheng-Canindin) [“The question of whether the parties agreed to arbitrate is answered by applying state contract law even when it is alleged that the agreement is covered by the FAA.”].) “Mutual assent, or consent, of the 5 parties ‘is essential to the existence of a contract’ (Civ. Code, § 1550; see also Civ. Code, § 1565), and ‘[c]onsent is not mutual, unless the parties all agree upon the same thing in the same sense’ (Civ. Code, § 1580).” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 460 (Sellers).) “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal).) The courts of appeal have established a three-step process for determining whether an arbitration agreement exists, which shifts the burden of producing evidence. (Ramirez v. Golden Queen Mining Co., LLC (2024) 102 Cal.App.5th 821, 830 (Ramirez); Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755 & fn. 7 (Iyere).) First, the party seeking arbitration must produce prima facie evidence of a written arbitration agreement. (Ramirez, supra, 102 Cal.App.5th at p. 830.) “A plain reading of [Code of Civil Procedure section 1281.2] indicates that as a preliminary matter the court is only required to make a finding of the agreement’s existence, not an evidentiary determination of its validity.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219, italics added; Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo) [“Accordingly, we conclude that defendants here met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing [the employee’s] electronic signature.”]; see also, Cal. Rules of Court, rule 3.1330 [“The provisions [of the arbitration agreement] must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.”].) “If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing 6 more is required for the moving party to meet its burden of persuasion.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) “If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement.” (Gamboa, supra, 72 Cal.App.5th at p. 165.) “If the opposing party meets the burden of producing sufficient evidence, the third step requires the party seeking arbitration to prove by a preponderance of the evidence that the parties formed a valid contract to arbitrate their dispute.” (Ramirez, supra, 102 Cal.App.5th at p. 830.) II. Standard of Review “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.” (Gamboa, supra, 72 Cal.App.5th at p. 166 [cleaned up].) “We review an order denying a petition to compel arbitration for abuse of discretion unless a pure question of law is presented. In that case, the order is reviewed de novo.” (Espejo, supra, 246 Cal.App.4th at pp. 1056–1057.) “Where the trial court’s ruling is based on a finding of fact, we review the decision for substantial evidence.” (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1121.) A trial court’s determinations at the first two steps of the three-step process for determining the existence of an agreement to arbitrate present questions of law. (See Ramirez, supra, 102 Cal.App.5th at p. 832 [concluding as a matter of law that petitioner carried its initial burden of making a prima facie showing of the existence of a written arbitration agreement]; Iyere, supra, 87 Cal.App.5th at pp. 755–756 [stating each question before the court 7 was one of law and explaining de novo review applies at second-step].) As to the third step, “[w]hen the court’s order denying a motion to compel arbitration is based on the court’s finding that petitioner failed to carry its burden of proof, the question for the reviewing court is whether that finding is erroneous as a matter of law. Specifically, the question becomes whether 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.” (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1066–1067 (Fabian) [cleaned up].) “For this reason, where . . . the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing party, we presume the trial court found the party’s evidence lacks sufficient weight and credibility to carry the burden of proof. We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence. The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. All conflicts, therefore, must be resolved in favor of the respondent.”1 (Id. at p. 1067 [cleaned up].) 1 Although the ultimate question under this standard is whether the trial court’s order is erroneous as a matter of law, this standard employs the principles of the substantial evidence standard, i.e. a presumption the trial court found the party’s evidence lacks sufficient weight and credibility and an obligation to resolve all conflicts in favor of the respondent and view all facts in favor of the judgment. (See Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5th 962, 966 [under the substantial evidence standard, “ ‘we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of 8  “ ‘If the decision of a lower court is correct on any theory of law applicable to the case, the judgment or order will be affirmed regardless of the correctness of the grounds [on] which the lower court reached its conclusion.’ ” (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 632.) III. SYHealth Failed to Meet Its Burden of Proving the Existence of an Agreement to Arbitrate A. The Trial Court Denied the Motion to Compel at the Third Step of the Three-Step Analysis The trial court made the ultimate determination that SYHealth failed to meet its burden of proving the existence of an agreement to arbitrate without expressly acknowledging the applicable three-step process for shifting the burden of production on this issue. Given the trial court’s silence in this respect, the parties dispute whether the court properly applied the three-step analysis and on which step it rested its decision. The court’s conclusion that SYHealth failed to meet its burden of proof regarding the existence of an arbitration agreement, rather than a conclusion that any party had failed to meet its burden of production, indicates it made its ruling at the third step. (See Gamboa, supra, 72 Cal.App.5th at p. 167 [“Although not explicit, the trial court necessarily found Gamboa challenged the authenticity of the arbitration agreement [at step two] because the court credibility of the witnesses and the weight of the evidence’ ”].) The trial court’s conclusion here that SYHealth failed to meet its burden of proving the existence of an arbitration agreement was premised on its finding that the evidence did not show mutual assent between the parties. And “whether mutual assent existed . . . is a question of fact” subject to the substantial evidence standard. (Id. at p. 966.) To the extent the traditional substantial evidence standard applies here, we would reach the same result. 9 ultimately found the Clinic did not ‘meet its burden to show a contract was formed.’ ”].) And even if we could find the court should have more explicitly engaged in the three-stop analysis, we affirm the order because, as we shall explain, the court’s conclusion at step three was correct. B. SYHealth Met Its Burden of Production at Step One At step one, the party seeking to compel arbitration must state in its motion “the provisions of the written agreement and the paragraph that provides for arbitration.” (Cal. Rules of Court, rule 3.1330.) The moving party can meet its burden of showing prima facie evidence of an alleged arbitration agreement “by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party’s] signature” or “by setting forth the agreement’s provisions in the motion.” (Gamboa, supra, 72 Cal.App.5th at p. 165; see Cal. Rules of Court, rule 3.1330 [“The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.”].) “The party seeking arbitration need only allege the existence of an agreement and support the allegation as provided in rule [3.1330].” (Ramirez, supra, 102 Cal.App.5th at p. 830.) Here, SYHealth presented copies of both its 2021 and 2023 arbitration policies. This was sufficient to satisfy SYHealth’s burden of producing an alleged arbitration agreement at step one. (Ramirez, supra, 102 Cal.App.5th at p. 830; Cal. Rules of Court, rule 3.1330.) C. Reagan Met Her Burden of Production at Step Two The burden of production then shifted to Reagan to present evidence disputing the existence of an agreement. (Gamboa, supra, 72 Cal.App.5th at p. 165.) To this end, Reagan submitted a declaration averring that she reviewed the arbitration policies produced by SYHealth but she never saw 10 the 2021 arbitration policy during her onboarding or any time thereafter and does not recall ever seeing, signing, or otherwise acknowledging either the 2021 or 2023 arbitration policy during her employment with SYHealth. This was sufficient to meet her burden of production at step two. (See Garcia v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th 41, 52 (Garcia) [“We join the legion of courts that have concluded a denial of signing an arbitration agreement is sufficient to shift the burden.”].) SYHealth argues Reagan’s alleged inability to recall receiving or signing the arbitration policies is insufficient as a matter of law to create a factual dispute at step two regarding the existence of an agreement. In support of its argument, SYHealth cites 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199 and Iyere, supra, 87 Cal.App.5th 747. But the facts here are materially distinguishable from 24 Hour Fitness and Iyere. In 24 Hour Fitness, the plaintiff physically signed an acknowledgment agreeing to arbitration and did not deny having done so but, instead, denied having read the related employee handbook. (24 Hour Fitness, at pp. 1205, 1215.) And in Iyere, the plaintiffs physically signed an arbitration agreement and, although they later claimed they did not remember signing the agreement, they admitted to having signed multiple unknown documents. (Iyere, at pp. 751, 753, 756.) The court in Iyere found the alleged lack of memory did not overcome the evidence of the plaintiff’s physical signatures because “no plaintiff declared that he had not signed the agreement, or that his physical signature was forged or inauthentic.” (Id. at p. 756.) Unlike in 24 Hour Fitness and Iyere, SYHealth has not produced any evidence Reagan ever signed an arbitration policy. And, although she signed an acknowledgment that she received the employee handbook in 2021, as we shall explain, this acknowledgement did not reference the separate stand- 11 alone arbitration policy in effect at the time or reflect Reagan’s express agreement to arbitrate.2 Thus, the reasoning of 24 Hour Fitness and Iyere does not further SYHealth’s argument here. D. SYHealth Failed to Prove the Existence of a Valid Arbitration Agreement at Step Three At step three, SYHealth bore the ultimate burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. (Rosenthal, supra, 14 Cal.4th at p. 413.) As we have stated, even where the FAA applies, courts apply state law contract principles to determine the existence of an agreement to arbitrate (First Options of Chicago, supra, 514 U.S. at p. 944; see Cheng-Canindin, supra, 50 Cal.App.4th at p. 683), and, under California law, mutual assent is an essential element of any contract (Sellers, supra, 73 Cal.App.5th at p. 460). “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.” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 777 (Mendoza) [cleaned up].) “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 may be 2 We note that other cases have held, contrary to Iyere, that a plaintiff’s statement under penalty of perjury that she did not remember signing an agreement was sufficient to dispute the existence of the agreement, even when the moving party produced an agreement purportedly hand signed by the plaintiff. (See, e.g., Gamboa, supra, 72 Cal.App.5th at pp. 167–168; Garcia, supra, 102 Cal.App.5th at p. 52 [citing Gamboa with approval]; but see Ramirez, supra, 102 Cal.App.5th at p. 835 [rejecting Gamboa and following Iyere].) 12 implied in fact” under circumstances showing continued employment constitutes acceptance of an agreement proposed by the employer.3 (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) 1. Reagan Did Not Expressly Agree to the 2021 Arbitration Policy SYHealth did not present any evidence that Reagan signed the 2021 arbitration policy. Rather, it relies on her signed acknowledgment of receipt of the 2021 handbook and evidence to show she electronically accessed the arbitration policy referenced in the handbook. Many cases have considered whether receipt of an employee handbook that refers to an arbitration policy is sufficient proof of an agreement to arbitrate. (Mendoza, supra, 75 Cal.App.5th at pp. 778–782.) Those cases relied on various factors for determining whether an agreement to arbitrate was formed based on the employee handbook or a written acknowledgment of its receipt, including (1) whether the employee had read the handbook before signing the acknowledgment form (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 790 (Esparza)), (2) whether the acknowledgement or the handbook expressly mentions arbitration and reflects an agreement to be bound by the arbitration policy (ibid.; Mendoza, at pp. 782–783), (3) whether the employee was presented with language indicating she was expected to sign an arbitration clause that was separate from the handbook (Mendoza, at p. 783; Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1159–1160 (Romo); 3 We do not find the trial court improperly applied these standards and, thus, reject SYHealth’s argument that the court improperly disfavored the arbitration agreement by applying “a more stringent standard for demonstrating assent.” 13 Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170–1171 (Mitri), (4) the location of the arbitration policy within the handbook and whether its font size and style made it stand out from the rest of the language (Mendoza, at p. 783; Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1521 (Sparks), abrogated on another ground in Harris v. TAP Worldwide, LLC, (2016) 248 Cal.App.4th 373, 383, 385–390), and (5) whether language in the handbook or acknowledgement suggest it was informational and not contractual and could be changed by the employer at any time (Mendoza, at p. 784; Esparza, at p. 789; Sparks, at pp. 1522–1523). When viewed in light of the factual determinations made by the trial court and viewing all facts and resolving all conflicts most favorably to Reagan and in support of the trial court’s order (Fabian, supra, 42 Cal.App.5th at p. 1067), these factors weigh against finding a valid agreement to arbitrate here. As to the first factor, the employee handbook states that “[e]mployees are required to . . . read and electronically acknowledge all SYHealth policies on the company intranet within 15 days of receipt of” the handbook and the handbook acknowledgment that Reagan signed states that she “will read” the handbook. Thus, “the policy acknowledgement explicitly recognized that [Reagan] had not read the handbook yet.” (Esparza, supra, 2 Cal.App.5th at p. 790 [finding acknowledgment recognized employee had not yet read handbook where it stated employee was expected to read handbook within one week].) “We have no basis to assume that[, by signing the acknowledgment, Reagan] agreed to be bound by something she had not read.” (Ibid.) As to the second factor, SYHealth’s 2021 arbitration policy was independent of the employee handbook and handbook acknowledgment form, 14 and there is no evidence Reagan expressly consented to the stand-alone arbitration policy. The handbook acknowledgment form stated that Reagan received the handbook and that the handbook contained an arbitration policy. The acknowledgment further stated, “I understand and agree that it is my responsibility to read, familiarize myself with and to follow all of SYHealth’s employment policies, including, but not limited to, those contained in the Employee Handbook.” But the handbook stated SYHealth’s actual arbitration policy was a “stand-alone” policy that was contained in an independent document to be provided separately. Nothing in the acknowledgement Reagan signed refers to this stand-alone document or suggests Reagan agreed to abide by the stand-alone policy. (See Esparza, supra, 2 Cal.App.5th at pp. 783, 790 [finding no valid arbitration agreement where handbook acknowledgment mentioned arbitration policy but did not state employee agreed to abide by that policy]; Mitri, supra, 157 Cal.App.4th at pp. 1170–1171 [where it is clear arbitration policy was meant to be stand- alone and separate from handbook no agreement existed where employee had not signed arbitration policy].) Next, although nothing in the record shows SYHealth expressly notified Reagan that she would have to separately sign the 2021 stand-alone arbitration policy, the fact that it was identified as a stand-alone policy and would be provided separately inherently suggests it was to be separately acknowledged. Importantly, the trial court found the exhibit SYHealth produced to show Reagan electronically accessed the 2021 policy indicates an option to view the signed document, suggesting it was intended to be signed. Accepting this factual finding and resolving any potential conflict in favor of the trial court’s order (Fabian, supra, 42 Cal.App.5th at p. 1067), we accept that SYHealth’s 2021 stand-alone arbitration policy required Reagan’s 15 signature. But SYHealth has not presented any evidence showing Reagan signed the document. The handbook’s reference to a stand-alone policy that the employee was required to sign separately “completely undermines any argument by defendants [that] the provision in the handbook itself was intended to constitute an arbitration agreement between [the employer] and its employees.” (Mitri, supra, 157 Cal.App.4th at pp. 1170–1171.) As to the fourth factor, the reference to the stand-alone policy was not prominently placed within the handbook but, rather, appeared on pages three and four. In addition, the bulk of the reference to the stand-alone policy appeared in the same font type and size as the rest of the handbook. However, the reference did contain an advisement in boldface and italics that it was “imperative” that employees review the policy, as it was a term and condition of employment. In light of this emphasized advisement, this factor weighs slightly in favor of finding a valid agreement. (Harris, supra, 248 Cal.App.4th at p. 383 [emphasis on arbitration provision in handbook acknowledgment weighed in favor of finding agreement to arbitrate].) Finally, language in the handbook and acknowledgement suggest the handbook’s reference to SYHealth’s policies were informational rather than contractual and could be changed by the employer at any time. Specifically, the handbook states, “This handbook sets forth and summarizes the policies, procedures, compensation, and benefits that apply to all employees at SYHealth. This Handbook is not a contract of employment for any length of time and all employees of SYHealth are employed on an at-will basis.” The handbook further states, “This Handbook is not intended to be and is not a contract (express or implied) for employment for a specified period of time, nor does it otherwise create any legally enforceable contractual obligations on the part of SYHealth for employment for a specified period of time. 16 Statements on any company documents, or by any employees of the company, DO NOT constitute or imply an employment contract and SHOULD NOT be relied upon by any job applicant or employee as assuring employment for any period of time or permanent employment.” The handbook continues, “SYHealth reserves the right, in its sole discretion, to revise, to change, update, modify and rescind its employment policies, benefits and working conditions, including the provisions in this handbook, except the policy of at- will employment, at any time. SYHealth will advise employees of any material changes to its policies within a reasonable time.” In addition, the acknowledgment states, “SYHealth can change any and all of its employment policies or practices at any time.” Like factors one through three, this factor weighs against finding a valid agreement. (Mendoza, supra, 75 Cal.App.5th at p. 784; Esparza, supra, 2 Cal.App.5th at p. 789; Sparks, supra, 207 Cal.App.4th at pp. 1522–1523.) When comparing these factors to those at issue in other cases addressing the existence of an arbitration agreement based on a handbook or acknowledgment form, we find this case is more analogous to those that found no agreement existed. For example, the facts here more closely align with those at issue in Mitri, supra, 157 Cal.App.4th at pp. 1170–1171 and Romo, supra, 87 Cal.App.4th at pp. 1159–1160—where the arbitration policies were found to be complete stand-alone documents separate from the handbook, and Mendoza, supra, 75 Cal.App.5th at pp. 784–785, Esparza, supra, 2 Cal.App.5th at pp. 789–791, and Sparks, supra, 207 Cal.App.4th at p. 1521—where the noncontractual language of the handbook and/or acknowledgments weighed against a finding that they amounted to a binding agreement to arbitrate. On the other hand, the facts of this case are distinguishable from Harris, where a valid arbitration agreement was found 17 to exist because the employee acknowledged receipt of the arbitration policy and the handbook stated “without equivocation that receipt and agreement to the mandatory arbitration policy is ‘an absolute prerequisite’ to hiring and continued employment” and that “ ‘[i]f, for any reason, an applicant fails to execute the Agreement to Arbitrate yet begins employment, that employee will be deemed to have consented to the Agreement to Arbitrate by virtue of receipt of this Handbook.’ ” (Harris, supra, 248 Cal.App.4th at p. 383.) 2. Reagan Did Not Expressly Agree to the 2023 Arbitration Policy Unlike the 2021 handbook, the 2023 handbook did not refer to an arbitration policy provided in a separate document. Rather, it incorporated the arbitration policy as an addendum and then notified its employees they were required to review and sign the updated handbook. Even assuming the 2023 handbook would bind Reagan to the arbitration policy had she signed it and agreed to be bound by the arbitration policy, SYHealth has not shown Reagan did either. It has only shown that Reagan might have electronically accessed the handbook multiple times. This is insufficient to show she assented to the arbitration agreement. (Mitri, supra, 157 Cal.App.4th at pp. 1170–1173 [finding arbitration agreement did not exist where defendants expected employee to sign agreement and plaintiffs did not sign agreement].) 3. Reagan Did Not Impliedly Consent to Either Arbitration Policy SYHealth argues that, even if Reagan did not expressly agree to arbitrate, her continued employment with SYHealth after being notified of the arbitration policies amounted to implied consent. Courts have rejected the generic argument that an employee impliedly consents to an arbitration agreement merely by continuing to work after receiving a copy of the agreement. (Mendoza, supra, 75 Cal.App.5th at p. 788 [recognizing courts have rejected argument that employee assents to 18 arbitration policy where employee received policy and worked for employee after receiving it].) Rather, courts that have found such implied agreements based their conclusions on something more in the record than mere notice of an arbitration policy. For example, in Harris, supra, 248 Cal.App.4th at pp. 383–384, the court found an implied agreement where the employee began employment after receiving an employee handbook that stated commencing employment would be deemed consent to arbitration. Similarly, in Mar v. Perkins (2024) 102 Cal.App.5th 201, 217 and Diaz v. Sohnen Enterprises (2019) 34 Cal.App.5th 126, 128–131, implied agreements were found where the employees refused to consent to the arbitration agreements after being advised that continuing to work would constitute acceptance of the agreements. SYHealth has not shown it gave Reagan the same sort of advisements present in Harris and Diaz. Nothing in the record here shows SYHealth advised Reagan that continuing to work would be deemed acceptance of their arbitration policies. SYHealth asserts that the California Supreme Court’s opinion in Asmus v. Pacific Bell (2000) 23 Cal.4th 1 stands for the proposition that “no language advising the employee of the effect of continuing employment is required to establish implied-in-fact consent.” As support, SYHealth relies on the Ninth Circuit Court of Appeals’ application of Asmus in Davis v. Nordstrom (9th Cir. 2014) 755 F.3d 1089, 1094. We are unpersuaded by SYHealth’s argument for three reasons. First, both Asmus and Davis predate Harris and Diaz, and SYHealth has not identified any subsequent opinions by the California Supreme Court calling Harris and Diaz into doubt. Second, Asmus is distinguishable. Asmus did not involve an employee’s alleged implied consent to be bound by an arbitration policy. Rather, there, the court considered whether an employer can unilaterally terminate an employment 19 security policy, where it maintained the policy for a reasonable time and provided reasonable notice of the termination to the affected employees. (Asmus, at pp. 5–9, 18.) Third, we are not bound by the federal court’s opinion in Davis. (See Wood v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 742, 762.) SYHealth also relies on Craig v. Brown & Root (2000) 84 Cal.App.4th 416. In Craig, the plaintiff was deemed to have impliedly consented to the employer’s alternative dispute resolution program where the employer twice mailed to the plaintiff memoranda and brochures notifying her of the new program and advising the program would govern future disputes related to the plaintiff’s employment. (Id. at pp. 419, 421.) But courts have often distinguished Craig. (See, e.g., Mendoza, supra, 75 Cal.App.5th at pp. 789– 790; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 806.) Specifically, in Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1508–1510 and Mitri, supra, 157 Cal.App.4th at p. 1172 the courts found Craig inapposite where, like here, the evidence showed the employer intended that its employees expressly adopt the relevant arbitration policy by signing the document. As we have explained, the record before us shows SYHealth intended that Reagan sign both the 2021 stand-alone arbitration policy and the acknowledgment of the 2023 handbook incorporating the arbitration policy. For this reason, we find Craig inapplicable here. Thus, when viewing all factual matters most favorably to Reagan and in support of the trial courts order and resolving all conflicts in Reagan’s favor (Fabian, supra, 42 Cal.App.5th at p. 1067), SYHealth has failed to meet 20 its burden of proving by a preponderance of the evidence that a valid arbitration agreement existed between it and Reagan.4 DISPOSITION The order is affirmed. Reagan is entitled to her costs on appeal. DO, Acting P. J. WE CONCUR: CASTILLO, J. RUBIN, J. 4 SYHealth argues that, “if this [c]ourt reverses the order denying the motion to compel, it can and should rule on the validity of the delegation clauses . . .” in its arbitration policies. Because we do not reverse the order denying the motion to compel, we do not address SYHealth’s argument regarding the delegation clauses. 21