The opinion
Filed 9/19/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
CHLOE E. BROCKMAN, C101451
Plaintiff and Respondent, (Super. Ct. No. STK-CV-
UMM-2023-0001612)
v.
KAISER FOUNDATION HOSPITALS et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Joaquin County, Robert T.
Waters, Judge. Affirmed.
Gibson, Dunn & Crutcher, Julian W. Poon, Lauren M. Blas, Ryan Azad, Jen Xue;
Marion’s Inn, Yvonne M. Pierrou; Cooley LLP and Kathleen R. Hartnett for Defendants
and Appellants.
Dhillon Law Group, Harmeet K. Dhillon, John-Paul S. Deol, Jesse Franklin-
Murdock; LiMandri & Jonna, Charles S. LiMandri, Paul M. Jonna, Jeffrey M. Trissell,
and Robert Weisenburger for Plaintiff and Respondent.
1
In this medical malpractice action involving gender-affirming care provided to an
adolescent female, defendants Kaiser Foundation Hospitals (Kaiser Hospitals) and others
(collectively, defendants) appeal from the order denying their petition to compel
arbitration. Defendants argue the trial court erred in concluding that they failed to carry
their burden to establish the existence of a valid agreement to arbitrate the controversy.
As we will explain, we disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The Parties and Health Care Plans
Plaintiff Chloe E. Brockman, a biological female, was born in 2004. As a child
and adolescent, she suffered from various mental health issues including, but not limited
to, social anxiety, depression, body dysmorphia, gender confusion, and “autism spectrum
symptoms.”
In November 2004, Kaiser Hospitals hired plaintiff’s mother as a nurse. Because
plaintiff’s mother was a member of the California Nurses Association (CNA) union, she
was eligible for health care benefits under a group health care plan offered by Kaiser
Foundation Health Plan, Inc. (KFHP), a non-profit California public benefit corporation
and licensed health care service plan under the Knox-Keene Health Care Service Plan
Act of 1975. (See Health & Saf. Code, § 1340 et seq.)1
In December 2004, plaintiff’s mother became a member of her union’s health care
plan by signing a one-page enrollment form, which contained an arbitration disclosure
statement. Shortly thereafter, in January 2005, plaintiff’s mother signed another one-
page enrollment form (change-of-beneficiary form),2 adding plaintiff as a dependent
under her health insurance. This form also included an arbitration disclosure statement.
1 Undesignated statutory references are to the Health and Safety Code.
2 We recognize the 2005 form is sometimes referred to in the record as a change-of-
beneficiary form. For purposes of this appeal, we refer to it as an enrollment form.
2
Notably, while both disclosure statements indicated that (with limited exceptions) the
arbitration provision applied broadly to any alleged violation of any duty arising out of or
related to membership in the health plan (2004 enrollment form) or service agreement
(2005 enrollment form), including “any claim for medical or hospital malpractice,” one
of the disclosures (2004 enrollment form) stated that the “full” arbitration provision was
contained in a separate document--the evidence of coverage document--while the other
disclosure (2005 enrollment form) indicated the same by specifically referencing a
separate document and certain policies--the service agreement and “Health Plan
policies.”
Approximately 15 years later, in July 2020, after plaintiff’s mother transferred to a
nonunion position with Kaiser Hospitals, she used the online enrollment process to enroll
herself and plaintiff as members of a self-insured (self-funded) health care plan--the
Kaiser employee medical health plan.3 Like the earlier enrollment forms (2004 and
2005), the online enrollment process included an arbitration disclosure statement
indicating that (with limited exceptions) the arbitration provision applied broadly to any
dispute alleging a violation of any duty relating to or arising from a relationship to any of
the Kaiser Permanente parties (e.g., KFHP, Kaiser Hospitals) as a participant in the
medical plan, including “any claim for medical or hospital malpractice.” The disclosure
specifically stated that the “full” arbitration provision was contained in a separate
document--“the Evidence of Coverage and/or the Summary Plan Description.”
3 This health care plan is sometime referred to in the record as the KEMH plan. In this
opinion, we refer to it as the self-funded plan. Self-funded health care is a self-insurance
arrangement whereby an employer (e.g., Kaiser Hospitals) provides health benefits to
employees (e.g., plaintiff’s mother) using the company’s own funds. The employer, not
an insurance company, directly pays the health care claims of its employees. Instead of
paying monthly premiums to an insurer, the company uses its own funds to cover health
care costs as they arise.
3
From 2005 to 2023, plaintiff and her mother were continuously enrolled as
members of the KFHP, which furnished health care to its members and their dependents
in accordance with the terms of written agreements. During this time period, KFHP
contracted with Kaiser Hospitals to provide or arrange for hospital services to members
of the KFHP. KFHP also contracted with The Permanente Medical Group, Inc. (Medical
Group) to provide or arrange for health care services to KFHP members.
Gender-Affirming Medical Care
From 2017 to 2020, when plaintiff was between the ages of 13 and 17, she
received a range of medical treatment related to gender transition that was aimed at
helping her align her physical and emotional life with her gender identity. These medical
services--referred to as gender-affirming care--were provided to treat a condition known
as gender dysphoria. The services began after plaintiff, at age 12, informed her parents
that she identified as male rather than female and her doctors “immediately affirmed” her
“self-diagnosed gender dysphoria.” Plaintiff, however, did not experience any
psychological relief from the “gender dysphoria treatment” she received. Instead, her
mental health declined and she became suicidal following her breast removal surgery at
age 15.
Pleadings
In February 2023, plaintiff filed the instant medical malpractice action against
various defendants, including two doctors, a psychologist, Kaiser Hospitals, and the
Medical Group. A first amended (operative) complaint was filed in July 2023, which
added two psychologists as defendants.
As for the entity defendants, Kaiser Hospitals was the hospital network through
which the individual defendants (doctors and psychologists) provided gender-affirming
care to plaintiff. The Medical Group, a licensed health care service plan, had entered into
contracts with the KFHP for the provision of health care services to KFHP members,
including plaintiff, and thus was the entity through which those medical services were
4
provided to plaintiff. All of the defendant doctors and psychologists were employed by
the Medical Group.
The medical malpractice claims alleged in the operative complaint are predicated
on the theory that plaintiff received treatment (gender-affirming care) that was not
medically justified, and that her medical providers failed to adequately explain the risks
and harms associated with that treatment.4 In addition to failing to perform a proper
psychological evaluation and disclose the risks and harms associated with the treatment,
the operative complaint alleges that plaintiff’s medical providers engaged in fraudulent,
oppressive, and malicious conduct by giving her incorrect/false information about suicide
risk and by reinforcing her erroneous belief that gender transition services would resolve
her mental health issues. According to plaintiff, her medical providers failed to meet the
standard of care as to their evaluation, diagnosis, and treatment of her. Additionally,
plaintiff asserts that her medical providers failed to meet the standard of care with respect
to obtaining informed consent for the treatment she received.5 As a result of the alleged
medical malpractice, plaintiff asserts that she “has deep physical and emotional wounds,
severe regrets, and distrust of the medical system.” Plaintiff further asserts that she has
“suffered physically, socially, neurologically, and psychologically,” including
“mutilation to her body and lost social and physical development along with her peers . . .
at key developmental milestones that can never be regained.”
4 The operative complaint alleges that plaintiff’s gender dysphoria “was not persistent
and resolved when she was close to reaching adulthood.” As a result, “she detransitioned
and no longer identifies as a male.”
5 As for the Kaiser entity defendants (Kaiser Hospitals and the Medical Group), the
operative complaint alleges that they failed to supervise and train treatment providers in
their provision of medical care to plaintiff and breached their duty to “adequately select,
maintain, and ensure the competence” of those providers as well as to establish
appropriate policies and procedures.
5
Petition to Compel Arbitration
In October 2023, defendants filed a petition to compel arbitration. They asserted
that such relief was warranted because, at the time of the alleged medical malpractice,
plaintiff was a dependent under her mother’s health care plans, one of which was a group
plan (2017-2020) offered to mother through the CNA union, and the other a self-funded
plan (2020-2023) offered to mother by her employer Kaiser Hospitals. In support of their
position, defendants relied on the arbitration provision set forth in the evidence of
coverage portion of the 2017 membership agreement for the CNA union group health
care plan as well as the arbitration provision set forth in the 2020 Kaiser Employee
Medical Health Plan Summary Benefits Booklet (Benefits Booklet) for the self-funded
plan. According to defendants, the relevant health care membership agreements included
a broad arbitration provision, which required mother and any dependent to resolve all
claims against defendants through final binding arbitration, including “any claim for
medical or hospital malpractice.” As evidence of an agreement to arbitrate the
controversy (i.e., the medical malpractice claims), defendants attached numerous exhibits
to a declaration filed in support of their petition to compel arbitration, which spanned
more than 500 pages.6
As part of their petition, defendants noted that plaintiff had been continuously
enrolled as a dependent under her mother’s health care plans from 2005-2023. With
respect to the two different types of plans at issue, defendants explained that when
plaintiff’s mother transferred to a nonunion position with Kaiser Hospitals in July 2020,
she used the online enrollment process (which included an arbitration disclosure
statement) to enroll herself and plaintiff in a self-funded plan offered by Kaiser Hospitals.
According to defendants, the terms and conditions relating to health care coverage under
6 The declaration was executed by Maryann Lombardo, “Senior Director, Benefits
Compliance and Governance at Kaiser Permanente.”
6
this plan, including the arbitration provision, were set forth in the Benefits Booklet.
Defendants further explained that, prior to July 2020, plaintiff was enrolled as a
dependent under her mother’s CNA union health care plan, which included an evidence
of coverage document containing the terms and conditions applicable to those enrolled
under the agreement, including the “full arbitration provision.”
Plaintiff opposed the petition, arguing that the arbitration provisions defendants
were relying on were not enforceable for two primary reasons: (1) the 2005 and 2020
health plan enrollment forms did not satisfy the “prominent display” arbitration
disclosure requirement set forth in section 1363.1; and (2) the 2004 and 2005 health plan
enrollment forms did not contain arbitration disclosure language required by section
1363.1 and Code of Civil Procedure section 1295; specifically, language disclosing that
“negligently and incompetently rendered medical services” are subject to binding
arbitration.
Plaintiff did not dispute that her mother signed the 2004 and 2005 enrollment
forms for the CNA union health care plan. Nor did plaintiff dispute that her mother
completed the online enrollment process for the 2020 self-funded health care plan.
However, plaintiff disputed that there was a valid, legally binding agreement between the
parties to arbitrate the controversy.
In reply, defendants argued that plaintiff’s contentions had no merit because “(1)
the preemption provision of the federal Employee Retirement Income Security Act
(‘ERISA’) preempts Section 1363.1 here, and (2) the [arbitration] disclosures in the three
forms [(i.e., the 2004, 2005, and 2020 health care enrollment forms)] comply with
Section 1363.1.”
In a court-ordered supplemental brief, defendants addressed the implications of
two recent California appellate court decisions, identified the specific arbitration
provisions in the record that, in their view, required arbitration of the controversy, and
explained why the “operable” arbitration agreements were enforceable under ERISA and
7
California law. Among other things, defendants made clear that they were attempting to
enforce the arbitration provisions included in each of the one-year group health care
membership agreements (set forth in evidence of coverage document) under which
plaintiff was enrolled through her mother’s union from 2017-2020, and the arbitration
agreement included in the one-year health care membership agreement (set forth in the
Benefits Booklet) under which plaintiff was enrolled through her mother’s self-funded
health care plan (2020), which they claimed contained largely identical language. In
response to the trial court’s request to identify “where in the evidence the [arbitration]
agreements and terms can be found,” the defendants directed the court to specific
portions of the voluminous materials they submitted in connection with their petition to
arbitrate.
Plaintiff filed a response to the supplemental brief and defendants filed a
supplemental reply brief, the latter of which is not included in the appellate record.
Trial Court’s Ruling
In April 2024, after a hearing, the trial court issued a written order denying the
petition to compel arbitration. The court found defendants had failed to satisfy their
burden to establish the existence of a valid agreement to arbitrate the controversy. In so
finding, the court initially addressed the 2020 self-funded health care plan. The court
began its analysis by pointing out that defendants were relying on the arbitration
provision set forth in the “Benefits Booklet.” After block quoting language from the
electronic enrollment form that plaintiff’s mother completed to become a member of the
2020 self-funded health care plan, the court explained, in relevant part, as follows:
“[O]n January 26, 2024, this court ordered Defendants to specifically state which
arbitration agreement they are seeking to enforce. . . . In . . . their supplemental brief . . .
Defendants responded in bold-print stating they seek to enforce the arbitration provision
‘in the Benefits Booklet for the self-funded plan’ . . . . Notably, the full arbitration
provision that Defendants seek to enforce—i.e., the January 2020 Benefits Booklet . . . is
8
not referenced in the above-quoted plan enrollment message [i.e., the electronic
enrollment form mother completed in 2020]. Instead, it refers explicitly to the ‘the full
arbitration provision’ in the 2020 ‘Evidence of Coverage’ and/or a ‘Summary Plan
Description[.]’ . . . As Defendants concede[,] . . . ‘the full arbitration provision’ they seek
to enforce . . . is not contained in the ‘Evidence of Coverage’ or the ‘Summary Plan
Description’ but in a completely different document—the . . . ‘Benefits Booklet[.]’ . . . In
short, Defendants failed to meet their prima facie burden. Defendants offered no
evidence Plaintiff in her individual capacity or through her mother agreed to the full
arbitration agreement set forth in the ‘Benefits Booklet[.]’ . . . The ‘Summary Plan
Description’ and the ‘Benefits Booklet’ are distinctly separate documents; even
Defendants itemize the documents as independent exhibits in their moving papers. This
court shares the sentiments expressed in the Court of Appeal’s footnote 4 of Baglione v.
Health Net of California, Inc. (2023) 97 Cal.App.5th 882—the enrollees and the court
should [not] be required to scour the various booklets for more information. Here, absent
direction from Defendants, this Court was unable to locate the full arbitration agreement
in question. It was not in either document referenced in the 2020 electronic enrollment
message. No evidence of Plaintiffs agreement to arbitration under terms of the ‘Benefits
Booklet’ has been offered. Defendants failed to meet their prima facie burden of
establishing the existence of an agreement to arbitrate under the July 2020 self-funded
plan.” (Boldface omitted.)
Next, the trial court considered defendants’ alternative contention that arbitration
was required “under the ‘traditional union plan’ allegedly in effect through June 30,
2020.” After noting that defendants specifically identified certain portions of the record
that they claimed contained evidence of an agreement to arbitrate for the years 2017-
2020, the court quoted (at length) language from the most recent of those union plans,
which was set forth in the 2020 evidence of coverage document. The court then stated:
“While the terms of the above agreement may be valid in that they do not run afoul of
9
any applicable state or federal law, this Court is nonetheless faced with the same
fundamental problem noted above. There is no evidence that Plaintiff actually agreed to
them.”
The trial court went on to explain that while defendants relied on the arbitration
disclosure statement included in the one-page enrollment form plaintiff’s mother signed
when she enrolled herself in the CNA union health care plan in 2004, that provision
specifically noted that “the full arbitration provision” was contained in the “Evidence of
Coverage” document, which defendants did not provide to the court. The court further
explained that while defendants also relied on the one-page enrollment form the mother
signed in 2005 (which added plaintiff as a dependent under her mother’s union health
care plan), the relevant language of which stated that the mother was agreeing to arbitrate
any claims that assert violations of any duty arising out of or relating to the “Service
Agreement” and to abide by the provisions of the “Service Agreement and Health Plan
policies,” none of these referenced documents were submitted to the court. The court
added that, although defendants “cite the 2004 and 2005” enrollment forms “as a basis
for enforcing the 2017, 2018, 2019, and 2020 union-plan arbitration agreements attached
to th[eir] motion,” defendants failed to adduce evidence showing that they provided
plaintiff or her mother with notice of these agreements.
In concluding that defendants had failed to meet their prima facie burden to
establish the existence of a valid agreement to arbitrate the controversy, the court
reasoned as follows:
“Here, Defendants failed [to satisfy their burden] in seeking to enforce arbitration
agreements from 2017, 2018, 2019, and 2020, by citing as evidence of Plaintiff’s consent
alleged agreements to arbitrate signed by Plaintiff’s mother in 2004 and 2005 specifically
referencing arbitration agreements in effect in 2004 and 2005—that is, approximately 13
to 16 years ago. Notably, the 2004 and 2005 agreements are not included with this
motion/petition, and based upon Defendants’ representations and exhibits attached to
10
their motion, the language of the 2004 and 2005 arbitration agreements has since
changed. [Citation.] Moreover, in the wake of the 2004 and 2005 agreements discussed
above, there is also no evidence or explanation as to how, why, or if the Plaintiff’s
mother’s union could somehow bind Plaintiff to the ‘future arbitration agreements’ (i.e.,
the 2017, 2018, 2019 and 2020 agreements) Defendants seek to enforce by this
motion/petition. As an example, what Defendants describe as the ‘Group Agreement’
effective January 1, 2017 through December 31, 2017 between Plaintiff’s mother’s union
and Defendants is not signed, [citation]. Defendants failed to present any other evidence
or argument of consent beyond a quick statement by counsel during oral argument that
proceeding under at ‘Group Agreement’ without a signature is ‘common practice’—that
is, the Group could accept by payment of premiums. [Citation.] However, there is no
evidence to support this is what actually happened here.”7
Because defendants failed to satisfy their initial burden to establish the existence
of a valid agreement to arbitrate the controversy, the trial court did not address “ERISA
preemption” or any other issue raised by the parties (e.g., whether the arbitration
disclosure requirements of California law (i.e., section 1363.1) had been satisfied).
Motion for Reconsideration
In May 2024, defendants filed a motion for reconsideration, arguing that such
relief was warranted based on new or different law, circumstances, and facts. Among
other things, defendants claimed that federal law (ERISA, Federal Arbitration Act
(FAA)) governed whether a person was enrolled in the health care plans at issue, that new
7 At the hearing, defendants’ counsel stated, in relevant part, as follows: “It doesn’t
matter that the [CNA] union did not sign the renewed agreement. The signature page
expressly states that it can be accepted by signature or payment of premiums. . . . [¶]
This is standard in the industry. Employer groups often do not sign renewals. . . . [¶]
There was definitely an agreement in place. After all, it was pursuant to those 2017
through 2020 agreements and evidence of coverage, which are incorporated into those
agreements, that plaintiff received the care in question she is now suing about.”
11
case law held that a member of an employer-group agreement (e.g., the CNA union
health care plan) agreed to by their employer is bound by all plan documents including
arbitration provisions, and that plaintiff’s mother was bound by the terms of the
arbitration provision in the self-funded plan under ERISA.
Plaintiff opposed the motion, arguing that there were no new facts or law to
warrant reconsideration. Defendants filed a reply.
The trial court, after a hearing, denied defendants’ motion, finding that there was
no basis (new law or facts) to justify reconsideration of the order denying defendants’
petition to compel arbitration. In so ruling, the court (among other things) rejected
defendants’ complaint that they lacked sufficient time to address the tentative ruling,
explaining that defendants “never requested additional time to address [it]” or “leave to
amend to supplement their [petition to compel arbitration] prior to submitting the matter
to the court” for a final decision.
Appeal and Appellate Briefing
Defendants filed a timely notice of appeal. The matter was fully briefed and
assigned to this panel in March 2025.
DISCUSSION
Defendants argue the trial court erred in denying their petition to compel
arbitration on the ground that they failed to carry their burden to establish the existence of
a valid agreement to arbitrate the controversy. We see no reversable error.
I
Relevant Legal Principles and Standard of Review
A party to an arbitration agreement may seek a court order compelling the parties
to arbitrate a dispute covered by the agreement. (Code Civ. Proc., § 1281.2.) “The
validity of an arbitration agreement in California is determined by a petition or motion to
compel arbitration.” (Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 977.)
A petition to compel arbitration is essentially a suit in equity to compel specific
12
performance of the arbitration agreement. (Spear v. California State Auto. Assn. (1992)
2 Cal.4th 1035, 1040.) “ ‘The trial court must determine in advance whether there is a
duty to arbitrate the controversy. . . . This determination “necessarily requires the court
to examine and, to a limited extent, construe the underlying agreement.” ’ ” (Gravillis v.
Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 770-771.)
A trial court must grant a petition to compel arbitration only “if it determines that
an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2;8 see also
Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59 (Avery) [
“ ‘ “the trial court’s first task is to determine whether the parties have in fact agreed to
arbitrate the dispute” ’ ”].) The trial court makes this determination using a summary
procedure in the manner “for the making and hearing of motions.” (Code Civ. Proc.,
§ 1290.2.) “In these summary proceedings, 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 v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) “The [party seeking
arbitration] bears the burden of proving the existence of a valid arbitration agreement by
the preponderance of the evidence, and [the opposing party] bears the burden of proving
by a preponderance of the evidence any fact necessary to its defense.” (Ibid.; see also
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 236 (Pinnacle); Mendoza v. Trans Valley Transport (2022) 75
Cal.App.5th 748, 764.)
8 Section 1281.2 provides: “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.” The section includes exceptions not relevant to this case. (See
§ 1281.2, subds. (a)-(d).)
13
“Whether the parties formed a valid agreement to arbitrate is determined under
general California contract law.” (City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th
401, 407.) “Even when an agreement provides that it is governed by the FAA, courts
must first apply state law principles in determining whether the parties entered into an
agreement to arbitrate.” (Garcia v. Stoneledge Furniture LLC (2024) 102 Cal.App.5th
41, 51; see Pinnacle, supra, 55 Cal.4th at p. 236 [“In California, ‘[g]eneral principles of
contract law determine whether the parties have entered a binding agreement to
arbitrate’ ”]; Banc of California, National Assn. v. Superior Court (2021) 69 Cal.App.5th
357, 366 [“Whether there is a written agreement to arbitrate ‘is a matter of contract, and
courts must enforce arbitration contracts according to their terms’ ”].) “As with any other
specific performance claim, a party seeking to enforce an arbitration agreement must
show the agreement’s terms ‘ “are sufficiently definite to enable the court to know what it
is to enforce.” ’ ” (Avery, supra, 218 Cal.App.4th at p. 71.) “ ‘ “Only the valid and
binding agreement of the parties, including all material terms well-defined and clearly
expressed, may be ordered specifically performed.” ’ ” (Ibid.)
While public policy favors contractual arbitration of disputes, arbitration is a
matter of contract and a party who has not agreed to arbitrate a controversy cannot be
compelled to do so. (Espejo v. Southern California Permanente Medical Group (2016)
246 Cal.App.4th 1047, 1057 [the public policy favoring contractual arbitration does not
apply to those who are not a party to an arbitration agreement, and a party cannot be
compelled to arbitrate a dispute that they have not agreed to resolve by arbitration];
Avery, supra, 218 Cal.App.4th at p. 59 [courts will not infer that the right to a jury trial
has been waived absent a clear agreement between the parties for the arbitration of
disputes]; see also Laymon v. J. Rockcliff, Inc. (2017) 12 Cal.App.5th 812, 820 [noting
that the contractual terms must be carefully examined before the parties to the contract
can be ordered to arbitration].) Thus, a court, before granting a petition to compel
arbitration, “ ‘must determine the factual issue of “the existence or validity of the
14
arbitration agreement.” ’ ” (Chambers v. Crown Asset Management, LLC (2021)
71 Cal.App.5th 583, 590.)
“ ‘An “arbitration agreement is subject to the same rules of construction as any
other contract . . . .” ’ ” (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1221.) “ ‘The
fundamental goal of contractual interpretation is to give effect to the mutual intention of
the parties.’ [Citations.] ‘Such intent is to be inferred, if possible, solely from the written
provisions of the contract.’ [Citations.] ‘If contractual language is clear and explicit, it
governs.’ ” (State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195.)
“ ‘ “ ‘[T]he parties may incorporate by reference into their contract the terms of
some other document. . . . But each case must turn on its facts. For the terms of another
document to be incorporated into the document executed by the parties the reference
must be clear and unequivocal, the reference must be called to the attention of the other
party and he must consent thereto, and the terms of the incorporated document must be
known or easily available to the contracting parties.’ ” ’ ” (Remedial Construction
Services, LP v. AECOM, Inc. (2021) 65 Cal.App.5th 658, 663; Avery, supra,
218 Cal.App.4th at p. 66.) “The party seeking to enforce an arbitration provision
incorporated by reference must establish the provision it seeks to enforce is the same
provision to which the parties agreed.” (Avery, at p. 67.)
“For any contract, the parties’ consent is a basic element. [Citation.] In addition,
the parties’ consent must be communicated to one another. [Citation.] Thus, a party’s
consent is essential to ‘the contractual underpinning of the arbitration procedure . . . .’
[Citation.] ‘[T]he asserted absence of contractual consent renders arbitration, by its very
definition, inapplicable to resolve the issue.’ ” (Toal v. Tardif, supra, 178 Cal.App.4th at
p. 1221.) “ ‘ “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, supra,75 Cal.App.5th at p. 777.) “ ‘Consent is not mutual,
15
unless the parties all agree upon the same thing in the same sense.’ [Citation.] Indeed,
‘[t]he parties’ outward manifestations must show that the parties all agreed “upon the
same thing in the same sense.” [Citation.] If there is no evidence establishing a
manifestation of assent to the “same thing” by both parties, then there is no mutual
consent to contract and no contract formation.’ ” (Avery, supra, 218 Cal.App.4th at
p. 67.) In the context of arbitration agreements, “it is not sufficient for the party seeking
to compel arbitration to show the parties generally agreed to arbitrate their disputes by
incorporating some arbitration provision into their contract. Rather, the party must
establish the precise arbitration provision the parties incorporated into their agreement to
govern their disputes.” (Id. at p. 68.)
“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 implied in fact [citation] or be effectuated by delegated consent
[citation]. An arbitration clause within a contract may be binding on a party even if the
party never actually read the clause.” (Pinnacle, supra, 55 Cal.4th at p. 236.)
Although the burden of persuasion is always on the moving party to prove the
existence of a valid agreement to arbitrate the controversy, the burden of production may
shift in a three-step process. (Gamboa v. Northeast Community Clinic (2021)
72 Cal.App.5th 158, 164-165 (Gamboa).) “First, the moving party bears the burden of
producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’ ”
(Id. at p. 165.) “The arbitration proponent must first recite verbatim, or provide a copy
of, the alleged agreement.” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755;
Cal. Rules of Court,9 rule 3.1330.)10 The moving party can meet its initial burden “ ‘by
9 Further rule references are to the California Rules of Court.
10 In relevant part, Rule 3.1330 provides: “A petition to compel arbitration . . . must state
. . . the provisions of the written agreement and the paragraph that provides for
16
attaching a copy of the arbitration agreement purportedly bearing the opposing party’s
signature.’ ” (Iyere, at p. 755; Gamboa, at p. 165.) “At this step, a movant need not
‘follow the normal procedures of document authentication’ and need only ‘allege the
existence of an agreement and support the allegation as provided in rule [3.1330].’ ”
(Iyere, at p. 755.)
“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. [Citation.] The
opposing party can do this in several ways. For example, the opposing party may testify
under oath or declare under penalty of perjury that the party never saw or does not
remember seeing the agreement, or that the party never signed or does not remember
signing the agreement.” (Gamboa, supra, 72 Cal.App.5th at p. 165.)
But the need to raise a defense to enforcement arises only if the moving party first
meets its burden of proving the existence of an arbitration agreement between the parties.
This is so because “the existence of [an arbitration] agreement is a statutory prerequisite
to granting [a] petition” to compel arbitration, which imposes on the moving party “the
burden of proving [the agreement’s] existence by a preponderance of the evidence,”
regardless of the opposing party’s claimed defenses. (Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal); West v. Solar Mosaic LLC
(2024) 105 Cal.App.5th 985, 992 (West); Gamboa, supra, 72 Cal.App.5th at pp. 164-
165.)
“If the opposing party meets its burden of producing evidence, then in the third
step, the moving party must establish with admissible evidence a valid arbitration
agreement between the parties. The burden of proving the agreement by a preponderance
arbitration. The provisions must be stated verbatim or a copy must be physically or
electronically attached to the petition and incorporated by reference.”
17
of the evidence remains with the moving party.” (Gamboa, supra, 72 Cal.App.5th at
pp. 165-166; see Rosenthal, supra, 14 Cal.4th at p. 413.)
“ ‘ “ ‘When, as here, the court’s order denying a motion to compel arbitration is
based on the court’s finding that [the moving party] failed to carry its burden of proof
[with respect to the ultimate question of whether an agreement to arbitrate exists], the
question for the reviewing court is whether that finding is erroneous as a matter of law.
[Citations.] “ ‘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.” ’ ” ’
[Citation.] ‘ “ ‘[U]nless 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. [Citations.] We have no power on
appeal to judge the credibility of witnesses or to reweigh the evidence.’ ” [Citation.]
“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. [Citation.] ‘ “All conflicts, therefore, must be resolved in favor
of the respondent.” ’ ” ’ ” (West, supra, 105 Cal.App.5th at p. 993; Fabian v. Renovate
America, Inc. (2019) 42 Cal.App.5th 1062, 1066-1067.)
Under well-established principles of California’s constitutional doctrine of
reversible error, an order of the lower court is presumed correct--that is, all intendments
and presumptions are indulged to support it on matters as to which the record is silent--
and the appellant must affirmatively demonstrate prejudicial error. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 .) It is
the appellant’s burden to overcome the presumption of correctness by demonstrating, on
the basis of the record presented to the court, error requiring reversal. (Jameson, at p.
609.)
18
II
Order Denying Petition to Compel Arbitration
As we have set forth above, pursuant to a court order issued after the petition to
compel arbitration was filed, defendants identified the specific arbitration provisions they
sought to enforce against plaintiff--the arbitration provisions “corresponding” to the CNA
union health care plan for the years 2017-2020, and the arbitration provision
“corresponding” to the self-funded health care plan for 2020. As for the union health
care plan, defendants explained that the applicable arbitration provisions were located in
each year’s (2017-2020) evidence of coverage document. Defendants further explained:
“Employees sign one enrollment form when they first join the plan (such as when they
are hired) and remain enrolled year after year. The employer-group (in this case the
union) formally renews the group agreement every year. Here, Plaintiff’s mother signed
an enrollment form in 2004 and a change-of-beneficiary form in 2005 containing
arbitration disclosures giving notice of the arbitration provision in the [Evidence of
Coverage document].”
However, as the trial court observed, while the arbitration disclosure in the 2004
enrollment form stated that “the full arbitration provision” was contained in the evidence
of coverage document, defendants never submitted that document to the court. As for the
2005 enrollment form that added plaintiff as a dependent under her mother’s union health
care plan, it did not reference the evidence of coverage document. Instead, the arbitration
disclosure in that form referenced “the provisions of the Service Agreement and Health
Plan policies,” none of which were submitted to the trial court. And there was no
evidence showing that plaintiff or her mother expressly agreed to the specific arbitration
provisions defendants sought to enforce in the union health care plan membership
agreements (2017-2020), the language of which changed over time. Indeed, defendants
did not produce any arbitration agreement containing the signature of plaintiff’s mother.
19
As for the 2020 self-funded plan, defendants relied on the terms set forth in the
Benefits Booklet as evidence of an agreement to arbitrate the controversy. In so doing,
defendants cited the arbitration disclosure language from the electronic form plaintiff’s
mother completed in 2020 when she enrolled in the self-funded plan. However, as the
trial court pointed out, the arbitration disclosure included in the enrollment form stated
that “the full arbitration provision” was contained in the “Evidence of Coverage” and/or
the “Summary Plan Description.” The arbitration disclosure makes no reference to the
Benefits Booklet. And the record demonstrates that the Benefits Booklet, Evidence of
Coverage, and summary plan description are distinct and separate documents.
Defendants, for their part, do not point to anything in the record showing that plaintiff or
her mother expressly agreed to the full arbitration agreement set forth in the Benefits
Booklet.
On this record, we discern no basis for reversal. Defendants did not submit a copy
of any arbitration agreement containing the signature of plaintiff’s mother. (See Iyere v.
Wise Auto Group, supra, 87 Cal.App.5th at p. 755 [a party seeking arbitration can carry
its initial prima facie burden “ ‘by attaching a copy of the arbitration agreement
purportedly bearing the opposing party’s signature’ ”]; Rule 3.1130 [same].) Instead,
defendants submitted only evidence showing that plaintiff’s mother signed health care
enrollment forms in 2004 and 2005 for the CNA union health care plan and completed an
online enrollment form in 2020 for the self-funded health care plan. While each of those
enrollment forms contained an arbitration disclosure, they all stated or indicated that the
“full arbitration provision” was contained in a separate document--e.g., evidence of
coverage, service agreement, summary plan description. None of those respective
documents for the relevant years (2004, 2005, 2020) were provided to the trial court.
And while defendants’ petition to compel arbitration stated verbatim the language of the
arbitration provision contained in the 2017 evidence of coverage document and the
arbitration provision contained in the 2020 Benefits Booklet, the petition did not state
20
verbatim the “full” arbitration provision in the specific documents referenced in the 2004,
2005, and 2020 enrollment forms completed by plaintiff’s mother. (See Rule 3.1330 [a
party seeking arbitration can satisfy its initial prima facie burden by stating verbatim “the
provisions of the written agreement and the paragraph that provides for arbitration”].)
And notably, as the trial court observed, defendants concede that the terms of the
arbitration provision in the relevant yearly membership agreements changed over time.
Under the circumstances presented, the trial court did not err in denying the petition to
compel arbitration. (See Avery, supra, 218 Cal.App.4th at p. 68 [“[I]t is not sufficient for
the party seeking to compel arbitration to show the parties generally agreed to arbitrate
their disputes by incorporating some arbitration provision into their contract. Rather, the
party must establish the precise arbitration provision the parties incorporated into their
agreement to govern their disputes”]; see id. at p. 69 [incorporation by reference requires
the parties’ contract to clearly and unequivocally identify the document being
incorporated, and it is the terms in that specific document to which the parties agree].)
We find no merit in the various arguments defendants raise on appeal. Initially,
we reject defendants’ suggestion that the trial court erred by insisting that they prove the
existence of a valid agreement to arbitrate the controversy. As noted ante, this is a
statutory prerequisite to granting a petition to compel arbitration and must be established
by a preponderance of the evidence, regardless of the opposing party’s claimed defenses.
(Rosenthal, supra, 14 Cal.4th at p. 413; Engalla v. Permanente Medical Group, Inc.,
supra, 15 Cal.4th at p. 972; West, supra, 105 Cal.App.5th at p. 992; see Code Civ. Proc.,
§ 1281.2 [arbitration shall be ordered only if the court determines that an agreement to
arbitrate the controversy exists].) We also reject defendants’ undeveloped arguments
concerning the 2020 self-funded plan, which defendants insist contains an arbitration
provision that “covers” the medical malpractice claims alleged in the operative
complaint. In defendants’ view, the trial court erred in concluding that they failed to
satisfy their burden of proof for two reasons: (1) the “document the full arbitration
21
agreement was contained in is beside the point because the arbitration disclosure [set
forth in the enrollment form for the 2020 self-funded plan] . . . suffices to require Plaintiff
to arbitrate her claims”; and (2) there was no dispute that plaintiff’s mother was provided
the Benefits Booklet in connection with her enrollment in the 2020 self-funded plan,
which contained the full arbitration agreement. Because these conclusory contentions are
not supported by citation and application of pertinent authority showing how and why the
trial court erred, defendants have failed to carry their burden to affirmatively demonstrate
reversible error. (Siskiyou Hospital v. County of Siskiyou (2025) 109 Cal.App.5th 14, 39;
United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; In re
S.C. (2006) 138 Cal.App.4th 396, 408.) As a result of defendants’ deficient briefing, no
further discussion of these issues is necessary.11
Equally without merit are defendants’ arguments concerning the CNA union
health care plan for the years 2017-2020. Citing cases that stand for the proposition that
an agent or other fiduciary who contracts for medical treatment on behalf of its
beneficiaries has the implied authority to agree to binding arbitration of malpractice
claims arising from that treatment (e.g., Madden v. Kaiser Foundation Hospitals (1976)
17 Cal.3d 699, 706, 709 (Madden) and Viola v. Dept. of Managed Health Care (2005)
133 Cal.App.4th 299, 311-312), defendants claim that arbitration of this matter is
required because they submitted the full arbitration agreement contained in the evidence
of coverage document for the years 2017-2020. In defendants’ view, the trial court was
11 As for the merits, we note that the Avery court rejected an argument similar to one of
the arguments defendants make here. In Avery, the parties seeking to compel arbitration
sought to enforce language in two employment-related forms as stand-alone arbitration
agreements. The court declined to do so because, although the forms expressed an intent
to arbitrate all disputes between the parties, both forms incorporated another document by
reference containing the arbitration policy. (See Avery, supra, 218 Cal.App.4th at pp. 56-
57, 70 [explaining that, without the incorporated document, it could not determine the
terms under which any arbitration must be conducted].)
22
“mistaken” when it stated that there was “no evidence or explanation as to how, why, or
if [plaintiff’s] mother’s union could somehow bind [plaintiff] to the” 2017-2020 union
agreements when those arbitration agreements are “not signed.” According to
defendants, mother’s membership in the CNA union, together with the union’s payment
of premiums and plaintiff’s (and mother’s) acceptance of health care and other benefits,
was sufficient to bind plaintiff to each of the union-plan arbitration agreements for the
years 2017-2020. But defendants never made that specific argument in their petition to
compel arbitration or in their reply papers. Nor did defendants raise the argument in their
court-ordered supplemental brief, even though the trial court directed them to
“specifically state which of the many arbitration provisions cited in their petition that
they were seeking to enforce and why.” Accordingly, because this argument was not
raised and developed in defendants’ written filings below, it is not preserved for appeal.12
12 Defense counsel’s statements at oral argument were insufficient to avoid forfeiture.
There, counsel for the first time mentioned Madden v. Kaiser Foundation Hospitals,
supra, 17 Cal.3d 699 and Viola v. Department of Managed Health Care, supra, 133
Cal.App.4th 299. Citing those cases, counsel claimed that, under the circumstances
presented, California law does not require a separate arbitration agreement signed by
plaintiff’s mother, and that the CNA union had the authority (as mother’s agent) to agree
to arbitrate on her behalf, including agreeing to any changes in the arbitration agreement
in the yearly health care membership agreements.
We recognize that appellate courts may consider an issue in the first instance when it
raises a question of law on undisputed facts. (Wisner v. Dignity Health (2022) 85
Cal.App.5th 35, 44.) But even if we assume that the forfeited issue qualifies for such
consideration, there is no rule that “an appellate court must consider a pure question of
law raised for the first time on appeal. Instead, the decision to do so or not ‘is largely a
question of the appellate court’s discretion.’ ” (Souza v. Westlands Water Dist. (2006)
135 Cal.App.4th 879, 898-899.) Our Supreme Court has cautioned that such discretion
should be exercised rarely and only in cases presenting an important legal issue. (In re
S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on unrelated grounds as stated
in In re S.J. (2008) 167 Cal.App.4th 953, 962; see Wisner, p. 44 [in anti-SLAPP case,
declining to reach argument that causes of action were based on other, unprotected
activity, where the argument was raised for the first time on appeal and thus not
23
We decline to consider the argument because it would be unfair to the trial court and
contrary to principles of judicial economy to do so. (Cf. Rancho Pauma Mutual Water
Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109, 118-119 [“Alluding to
an issue . . . during oral argument” in the trial court “in a case involving numerous
documents is insufficient to preserve the issue” for appeal]; Clark v. Optical Coating
Laboratory, Inc. (2008) 165 Cal.App.4th 150, 172, fn. 17 [litigants “preserved [an] issue
for appellate review, if only barely,” where, in addition to a comment on that issue during
oral argument in the trial court, they argued the issue in a request for judicial notice made
in connection with a responsive pleading].)13
In sum, we conclude defendants have not carried their burden on appeal to
affirmatively demonstrate reversible error. Defendants have not shown that the evidence
presented in the proceedings below required the trial court, as a matter of law, to find that
a valid agreement to arbitrate the controversy existed. (West, supra, 105 Cal.App.5th at
p. 993; Fabian v. Renovate America, Inc., supra, 42 Cal.App.5th at pp. 1066-1067.)14
Accordingly, we will affirm the challenged order.
“developed before, nor considered or ruled upon by, the trial court”]; Saville v. Sierra
College (2005) 133 Cal.App.4th 857, 872-873 [it would be manifestly unjust to the
opposing parties, unfair to the trial court, and contrary to judicial economy to permit a
change of theory on appeal].)
13 Defendants’ unsuccessful attempt to raise the argument in their motion for
reconsideration does not avert forfeiture. The trial court denied the motion on the ground
that defendants failed to identify any new or different facts, circumstances, or law
justifying reconsideration of the order denying their petition to compel arbitration.
Defendants do not challenge the merits of that ruling on appeal.
14 In light of our conclusion, we need not and do not consider any of the other arguments
raised by the parties.
24
DISPOSITION
The order denying the petition to compel arbitration is affirmed. Plaintiff is
entitled to her costs on appeal. (Rule 8.278(a).)
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Robie, J.
25