Gabourel v. Luxottica of Am., Inc.

1

PASSION GABOUREL, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. LUXOTTICA OF AMERICA, INC., an Ohio corporation, DBA Lenscrafters, Defendant-Appellant, and LUXOTTICA RETAIL NORTH AMERICA, INC., a business entity of unknown form, Defendant.

No. 23-55185

United States Court of Appeals, Ninth Circuit

January 24, 2024

NOT FOR PUBLICATION

Argued and Submitted January 11, 2024 Pasadena, California

Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District Judge Presiding D.C. No. 2:22-cv-00471-FWS-MAA Before: BOGGS, ^[**] RAWLINSON, and H.A. THOMAS Circuit Judges.

MEMORANDUM ^[*]

Luxottica of America, Inc., d/b/a LensCrafters (Luxottica) appeals the district court's denial of Luxottica's motion to compel its employee, Passion Gabourel (Gabourel), to arbitrate this employment action. The district court found that the 2015 dispute resolution agreement Gabourel signed (the 2015 DRA) was superseded by the 2018 dispute resolution agreement (the 2018 DRA). Luxottica contends that the 2015 DRA remains in effect because Gabourel never assented to the 2018 DRA, but instead opted out of it. We have jurisdiction under 9 U.S.C. § 16. Reviewing de novo, see Bielski v. Coinbase, Inc., 87 F.4th 1003, 1008 (9th Cir. 2023), we affirm.

1. As a preliminary matter, we conclude that, even if not waived, Luxottica's argument that this issue should be delegated to the arbitrator lacks merit. See Holley-Gallegly v. TA Operating, LLC, 74 F.4th 997, 1001 (9th Cir. 2023) (explaining that arguments not raised before the district court "with sufficient specificity and vigor" are generally considered waived on appeal). Both the 2015 DRA and the 2018 DRA expressly state that "[a]ny disputes about the enforceability of the Dispute Resolution Agreement shall be decided by a court."

2. We agree with the district court's determination that the 2018 DRA was a valid and enforceable agreement between Gabourel and Luxottica. Under California law,^[1] mutual assent to a contract "is to be ascertained solely from the contract that is reduced to writing, if possible." Martinez v. BaronHR, Inc., 51 Cal.App.5th 962, 967 (2020) (citations omitted). Under its written terms, the 2018 DRA "[wa]s effective upon [Gabourel's] receipt of it." Gabourel electronically "acknowledge[d] that she ha[d] been given the opportunity to review the [2018 DRA]." And in signing the accompanying Acknowledgment and Agreement, Gabourel represented that she "received, . . . read, . . . underst[ood][,] and agree[d] to the terms of" the 2018 DRA.

Gabourel's subsequent opt-out selection did not constitute a rejection of the 2018 DRA. Gabourel's opt-out selection from the drop-down menu indicated that she "agree[d] that [she was] not entitled or required to participate in or utilize the arbitration procedures described in 'Dispute Resolution Agreement Step #2: Arbitration' in the [2018 DRA]." Interpreting the agreement as a whole, we conclude that the opt-out language reflects that Gabourel accepted the 2018 DRA, and that her opt-out was limited to the provisions requiring her to participate in the arbitration proceedings described in "Step #2." See Segal v. Silberstein 156 Cal.App.4th 627, 633 (2007). Additionally, the 2018 DRA provides that it "replaces prior agreements regarding the arbitration of disputes." Thus, the 2015 DRA was superseded by the valid and enforceable 2018 DRA.^[2]

AFFIRMED.

---------

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

[**]The Honorable Danny J. Boggs United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

^[1] "State contract law controls whether the parties have agreed to arbitrate." Knutson v. SiriusXM Radio Inc., 771 F.3d 558, 565 (9th Cir. 2014).

^[2] We are not persuaded by Luxottica's reliance on Sonico v. Charter Communications, LLC, No. 19-cv-01842-BAS-LL, 2021 WL 268637 (S.D. Cal. Jan. 27, 2021). Not only is Sonico a non-binding district court decision, it is factually distinguishable. Se...