Gordon v. Sodexo CA1/2

Filed 9/20/24 Gordon v. Sodexo CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

CHANEL GORDON et al., Plaintiffs and Respondents, A168122 v. SODEXO, INC. et al., (San Mateo County Super. Ct. No. 21CIV05882) Defendants and Appellants.

In this appeal from an order denying a petition to compel arbitration, the defendants contend that the trial court erred in concluding they had not met their burden to show that the plaintiffs consented to arbitration. In the trial court, defendants argued that plaintiffs had demonstrated their consent by electronically signing an arbitration agreement. On appeal, defendants take a different position, arguing instead that the arbitration agreement was a “unilateral proposal calling for implied assent through continued employment.” Because this argument was not raised in the trial court, defendants have forfeited it, and we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2021, plaintiffs Chanel Gordon and Matthew Sanchez sued Sodexo, Inc.; Sodexo North America; SDH Services West, LLC; Sodexo America, LLC; Sodexo Operations, LLC; and Nourish, Inc. (defendants) alleging employment-related claims on behalf of themselves and similarly situated

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employees under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.). Defendants asserted as an affirmative defense that plaintiffs’ claims were subject to binding contractual arbitration. The action was stayed pending the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, and the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104. In January 2023, while Adolph was pending, the trial court lifted the stay to permit arbitration-related discovery and set a June 2023 hearing date for defendants’ motion to compel arbitration. In their motion, defendants argued that each of the plaintiffs agreed to submit disputes to arbitration in the course of an “onboarding process” in which they electronically signed an arbitration agreement. Defendants presented evidence that in an online process using a website portal, the plaintiffs were presented with a hyperlink to a “Mutual Agreement to Arbitrate Claims,” and that below the hyperlink was a statement, “Once you review, please click the ‘Add My Signature’ Button. By clicking the button below, you are applying your electronic signature.” Defendants argued that their records showed that each plaintiff had clicked the button, thereby agreeing to submit any disputes to arbitration.1 In opposing the motion, plaintiffs pointed out that the purportedly signed arbitration agreements that defendants presented as evidence did not in fact show any electronic signatures, even though other onboarding documents that defendants presented and claimed were electronically signed,