Leeper v. Nickerson CA2/6

Filed 5/26/22 Leeper v. Nickerson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

CHRISTINA LEEPER, 2d Civ. No. B311379 (Super. Ct. No. 56-2019- Plaintiff and Respondent, 00535133-CU-WT-VTA) (Ventura County) v.

SANDRA NICKERSON et al.,

Defendants and Appellants.

Defendants Sandra Nickerson, Survival Systems Staffing Inc. (Survival Systems), SJNDEN LLC and SJNDEN Services, LLC appeal the trial court’s order denying their motion to compel arbitration in this action by a former employee, plaintiff Christina Leeper.1 They contend the trial court erred by finding they had failed to meet their burden of proving the existence of an arbitration agreement. We affirm.

1 Defendant Dennis Nickerson passed away on October 5, 2020.

FACTUAL AND PROCEDURAL BACKGROUND Ms. Leeper worked as an executive assistant for Survival Systems and its related entities, which the Nickersons co-owned. Claiming she was sexually harassed by Dennis Nickerson, Ms. Leeper filed this action for sexual battery, hostile sexual environment, constructive discharge and breach of employers’ duty to prevent harassment. Defendants moved to compel arbitration “based on Ms. Leeper’s signed consent to the company’s arbitration agreement contained in its employee handbook.” Defendants did not produce either the original or a copy of the agreement. The motion was based on (1) Survival Systems’ custom and practice of requiring all new employees to sign the arbitration agreement, (2) Ms. Nickerson’s custom and habit of not authorizing an employee’s first paycheck without a signed arbitration agreement in place and (3) proof that 73 of Survival Systems’ 74 employees had signed the arbitration agreement in compliance with company policy. Ms. Leeper was the only employee without an arbitration agreement in her personnel file. Ms. Leeper denied receiving the employee handbook and arbitration agreement. Faced with a “credibility issue,” the trial court held an evidentiary hearing on January 11, 2021. Ms. Nickerson testified that she does not authorize the issuance of an employee’s first paycheck unless the arbitration agreement is among the signed employment documents. Her custom and habit is to log into the payroll system on the Wednesday before payroll and review the “time cards, all agreements of any new employees, any commissions payable, everything that [is] need[ed] in order to approve the pay for the office.” Ms. Nickerson admitted she did not see Ms. Leeper sign the arbitration agreement, but she had