Zarate v. Bruker Nano CA2/6

Filed 3/28/13 Zarate v. Bruker Nano CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOHN ZARATE, 2d Civil No. B241217 (Super. Ct. No. 1384661) Plaintiff and Respondent, (Santa Barbara County)

v.

BRUKER NANO, INC.,

Defendant and Appellant.

Appellant Bruker Nano, Inc. (Bruker) purchased all of the stock of Veeco Metrology (Veeco) and retained all of Veeco's employees, including respondent John Zarate. When hired by Veeco, Zarate signed an employee confidentiality agreement containing an arbitration provision. Zarate later signed a similar confidentiality agreement with Bruker, but it did not provide for arbitration. A dispute arose between Zarate and Bruker, resulting in Zarate's termination. Zarate sued, inter alia, for wrongful termination and Bruker moved to compel arbitration. The trial court determined the second agreement superseded the first and, consequently, there was no agreement to arbitrate. We affirm. FACTS AND PROCEDURAL BACKGROUND In 2008, Zarate was hired by Veeco, a California based manufacturer of high resolution microscopes. Zarate executed a three-page employee confidentiality and inventions agreement (Veeco Agreement) that contains an arbitration provision requiring

him to submit "any claim or controversy arising out of [his] employment or the cessation thereof . . . [to] binding arbitration." The document states that the terms of the agreement apply as a condition of his employment or continued employment with Veeco, "its subsidiaries, affiliates, successors or assigns." Two years later, Bruker, a Massachusetts based microscope manufacturer, purchased 100% of Veeco's stock, and all of Veeco's existing employees, including Zarate, began working for Bruker. During an orientation meeting, a Bruker representative informed Zarate and the other Veeco employees that they would have to sign several employment-related documents, including an employee patent and confidentiality agreement (Bruker Agreement). The three-page Bruker Agreement addresses virtually the same subject matter as the Veeco Agreement, but does not contain an arbitration provision. After Bruker terminated Zarate's employment, Zarate brought this action for wrongful termination in violation of public policy and waiting time penalties. Zarate contends Bruker terminated him because he refused to engage in "illegal" marketing activities. When Zarate refused to submit his claims to arbitration, Bruker petitioned to compel arbitration based on the arbitration provision in the Veeco Agreement. Bruker asserted that the Bruker Agreement did not supersede the Veeco Agreement and that both agreements, including the Veeco arbitration provision, are fully enforceable. The trial court denied the petition, concluding Zarate never consented to have his claims against Bruker submitted to arbitration. The court acknowledged that the Bruker Agreement does not contain an integration clause or state that it supersedes all prior agreements, but determined "it is apparent on reading the [Bruker] agreement that it was intended to replace the Veeco document." The court noted that both agreements concern the same subject matter, i.e., confidentiality and inventions, were presented to Zarate as a condition of employment and include "a number of inconsistent provisions that would be very difficult to enforce if both agreements were in effect." The two agreements have dissimilar disclosure and assignment provisions and define confidential information very differently, causing the court to remark: "It makes no sense for