Toothman v. Redwood Toxicology Laboratory

Filed 5/5/26
                      CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                               DIVISION FOUR


ROBERT TOOTHMAN,
        Plaintiff and Respondent,           A171567

v.
REDWOOD TOXICOLOGY                          (Sonoma County Super. Ct.
LABORATORY, INC.,                           No. SCV-271680)

        Defendant and Appellant.


        Redwood Toxicology Laboratory, Inc. appeals from an order denying its
motion to compel Robert Toothman to arbitrate his individual employment
claims against it and to dismiss his class claims. Redwood claimed that
Toothman was bound by an arbitration agreement (Arbitration Agreement)
he had signed with Apex Life Sciences, LLC, a temporary employment agency
that initially placed him with Redwood. After Toothman’s employment with
Apex ended, Redwood hired him directly. Toothman’s claims against
Redwood are based exclusively on this period of direct employment.
        We conclude that the trial court correctly denied Redwood’s motion for
the following reasons: Redwood was not a party to the Arbitration
Agreement; even if it could be considered a third-party beneficiary, the
Arbitration Agreement did not cover claims arising from Toothman’s
employment with Redwood; and Toothman was not equitably estopped from
refusing to arbitrate because his claims were not intertwined with or founded
in the Arbitration Agreement. We therefore affirm the order.
                               BACKGROUND
      Apex is an employment agency that hires and places temporary
workers at other businesses. In January 2018, Apex hired Toothman for that
purpose. Toothman and Apex entered into an employment agreement
(Employment Agreement) and the companion Arbitration Agreement under
which they agreed to arbitrate employment disputes.
      The Arbitration Agreement stated that it was between “Employee,” i.e.,
Toothman, and “Company,” which the agreement defined as “Apex Life
Sciences, LLC, a division of On Assignment, Inc., its affiliates, subsidiaries
and parent companies. . . .” Under its terms, Toothman and “Company”
agreed “to arbitrate any dispute arising out of or related to [Toothman’s]
employment with, or termination of employment from, Company.” They also
waived the right to bring class or representative claims.
      Apex placed Toothman at Redwood, where Toothman worked
exclusively until his employment with Apex ended in April 2018. Toothman
then began working directly for Redwood, where he stayed until June 2022.
Toothman and Redwood did not enter into an arbitration agreement, and the
documents that Toothman signed upon hire did not refer to the Arbitration
Agreement.
      On September 26, 2022, about three months after leaving his job with
Redwood, Toothman filed a class action against Redwood. The complaint
alleged that he had been a Redwood employee from January 2018 to
June 2022, and it alleged Labor Code violations with a maximum statutory
period of limitation of four years. He thus based his claims on Redwood’s
alleged conduct starting no earlier than September 26, 2018, well after he
had stopped working for Apex and had started working directly for Redwood.
The complaint defined the class as “all individuals who are or previously were


                                       2
employed by [Redwood] in California, including any employees staffed with
[Redwood] by a third party, and classified as non-exempt employees . . . at
any time during the period beginning four (4) years prior to the filing of this
[c]omplaint . . . .”
       After Apex produced the Arbitration Agreement in response to a
subpoena from Redwood, Toothman filed a first amended complaint
(Complaint). The Complaint redefined the class to exclude “any workers
staffed with [Redwood] by a third party while those workers were on
assignment with [Redwood].” It expressly did not exclude “individuals, such
as [Toothman], who were both direct employees and non-direct/staffed
workers of [Redwood] at different periods of time,” but it did exclude “any
such time such individuals were not direct employees of [Redwood].”
       Redwood filed a motion to compel arbitration, arguing that it was a
party to the Arbitration Agreement because it qualified as an “affiliate” of
Apex. It argued alternatively that it could enforce the Arbitration Agreement
as a third-party beneficiary and that Toothman was equitably estopped from
refusing to arbitrate. In addition to requesting an order to compel
arbitration, Redwood sought dismissal of Toothman’s proposed class claims.
The trial court denied the motion.
                                DISCUSSION
       As an overarching theme, Redwood contends that the trial court erred
by failing to analyze the Arbitration Agreement “ ‘with a healthy regard for
the federal policy favoring arbitration’ ” (quoting Arthur Andersen LLP v.
Carlisle (2009) 556 U.S. 624, 630, fn. 5) and failing to apply Federal
Arbitration Act (FAA) (9 U.S.C. §1 et seq.) presumptions in favor of
arbitration. In Redwood’s view, the trial court should have resolved any
ambiguity in favor of granting Redwood’s motion.


                                       3
      The FAA’s “ ‘policy favoring arbitration,’ ” the United States Supreme
Court has explained, “ ‘is merely an acknowledgment of the FAA’s
commitment to overrule the judiciary’s longstanding refusal to enforce
agreements to arbitrate and to place such agreements upon the same footing
as other contracts.’ ” (Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418.)
Accordingly, it is both federal policy and California policy to treat arbitration
agreements like other agreements. (Id. at pp. 418–419; Fuentes v. Empire
Nissan, Inc. (2026) 9 Cal.5th 93, 110, citing Quach v. California Commerce
Club, Inc. (2024) 16 Cal.5th 562, 579; Ford Motor Warranty Cases (2025)
17 Cal.5th 1122, 1128.) Whether under this standard courts must
nonetheless resolve any ambiguities in favor of arbitration, as Redwood
contends, is a question we find immaterial here. For the reasons discussed
below, the Arbitration Agreement is not reasonably susceptible to an
interpretation in which it covered the claims Toothman alleges in his
Complaint, so applying a presumption in favor of arbitrability would not
change the result.
      As a fundamental matter, “ ‘ “a party cannot be required to submit to
arbitration any dispute which he has not agreed so to submit.” ’ ” (Pinnacle
Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 236 (Pinnacle), quoting AT&T Technologies v.
Communications Workers (1986) 475 U.S. 643, 648.) Thus, before a trial
court may grant a motion to compel arbitration, it must determine that the
opposing party agreed to arbitrate the dispute. (See Code Civ. Proc.,
§ 1281.2; Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158,
164 (Gamboa).) “ ‘General principles of California contract law guide the
court in making this determination.’ ” (Ford Motor Warranty Cases, supra,
17 Cal.5th at p. 1128.)


                                        4
      When “a party to an arbitration agreement alleg[es] the existence of a
written agreement to arbitrate a controversy,” the party may move for an
order to arbitrate based on the agreement. (Code Civ. Proc., § 1281.2.) The
moving party bears the burden of proving that such an agreement exists.
(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413
(Rosenthal).) As part of its burden, the moving party must first produce
prima facie evidence of the agreement. (Gamboa, supra, 72 Cal.App.5th at
pp. 164–165, citing Rosenthal, at p. 413.) If the opposing party contests the
authenticity, validity, or general enforceability of the agreement, the burden
then shifts to that party to produce evidence in support of such a defense.
(Rosenthal, at p. 413.)
      “Because arbitration is a matter of contract, generally ‘ “one must be a
party to an arbitration agreement to be bound by it or invoke it.” ’ ”
(DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1352–
1353.) If only the opposing party entered the agreement, however, the
moving party may still seek to compel arbitration under alternative theories.
(Soltero v. Precise Distribution, Inc. (2024) 102 Cal.App.5th 887, 892–893,
898.) One is that the moving party is a third-party beneficiary of the
agreement. (Ibid.) Another is that the opposing party is equitably estopped
from contesting arbitration. (Id. at pp. 892–893.)
      We review de novo a trial court’s denial of a motion to compel
arbitration where, as here, there is no dispute about the material facts.
(Pinnacle, supra, 55 Cal.4th at p. 236.)
                                       I.
      Redwood first contends that the trial court erred by failing to apply the
above-described burden-shifting protocol. Redwood argues that it carried its
initial burden by submitting the Arbitration Agreement, thus shifting the


                                        5
burden to Toothman to submit evidence showing that it was not enforceable.
Redwood contends that Toothman failed to do so, and thus the protocol
compelled the court to order arbitration. We are not persuaded.
      The decisions cited by Redwood show that courts shift the burden when
the opposing party contests the existence, validity, or general enforceability
of an arbitration agreement—for example, because of fraud in the execution,
a signature’s inauthenticity, or unconscionability. (See Rosenthal, supra,
14 Cal.4th at p. 413 [fraud in the execution]; Iyere v. Wise Auto Group (2023)
87 Cal.App.5th 747, 754–755 [signature authenticity and unconscionability];
Bannister v. Marindence Opco, LLC (2021) 64 Cal.App.5th 541, 543–545
[signature authenticity]; Gamboa, supra, 72 Cal.App.5th at p. 168
[agreement authenticity]; Hotels Nevada v. L.A. Pacific Center, Inc. (2006)
144 Cal.App.4th 754, 759, 760, 761–765 [fraud in the execution]; Owens v.
Intertec Design, Inc. (1995) 38 Cal.App.4th 72, 73–75 [coercion and other
grounds for revocation].) Redwood cites no burden-shifting decision in which
the party opposing arbitration challenged the applicability of the agreement
because the party invoking the agreement was not a signatory. Indeed, the
text of Code of Civil Procedure section 1281.2 presupposes that the moving
party and the opposing party are parties to the alleged arbitration
agreement: “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 . . . .” (Italics
added.)
      Jones v. Jacobson (2011) 195 Cal.App.4th 1 is directly on point. There,
the moving parties argued that they had carried their initial burden by
submitting an arbitration agreement that they had not signed. (Id. at p. 15.)


                                        6
The court disagreed, concluding that “in such instances, the nonsignatory
bears the burden to establish he or she is a party to the arbitration
agreement/provision covering the dispute.” (Ibid.; cf. Kinder v. Capistrano
Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 808, 812–816 [moving
party “did not meet its initial burden to make a prima facie showing that [the
opposing party] agreed to arbitrate by submitting arbitration agreements
signed by [the opposing party’s] adult children” purportedly on her behalf].)
We reach the same conclusion. Toothman does not contest the Arbitration
Agreement’s general enforceability in the sense contemplated by the
decisions Redwood cites. He argues instead that Redwood may not enforce
the Arbitration Agreement because Redwood is not a party to it. It would
make little sense to deem Redwood’s submission “prima facie evidence of a
written agreement to arbitrate the controversy” (Rosenthal, supra, 14 Cal.4th
at p. 413) when Redwood does not appear as a signatory on the face of the
document. Instead, Redwood must establish that it is a party to the
Arbitration Agreement as part of its initial burden.
      This understanding of the protocol is consistent with the lines of
decisions addressing the third-party beneficiary and equitable-estoppel
theories. Those decisions make no mention of a burden shift even though a
nonsignatory moving party has produced an arbitration agreement. (See,
e.g., Soltero v. Precise Distribution, Inc., supra, 102 Cal.App.5th at p. 899
[nonsignatory moving party “failed to demonstrate that it is an intended
third party beneficiary”]; Ford Motor Warranty Cases, supra, 17 Cal.5th at
pp. 1126, 1128–1138 [resolving equitable estoppel argument without shifting
burden to opposing party].) Thus, whether Redwood claims an entitlement to
compel arbitration as a party to the Arbitration Agreement or under one of
its alternative theories, it is Redwood’s burden to establish the prerequisite


                                        7
for that entitlement—i.e., that it was a party or beneficiary, or that there
were facts warranting equitable estoppel.
                                       II.
       Redwood contends that, although it is not a signatory, it is either a
“direct party” or an “express beneficiary” entitled to enforce the Arbitration
Agreement because it was Apex’s “affiliate.” We disagree.
       The Arbitration Agreement provides that it is between “Employee,” on
the one hand, and “Apex Life Sciences, LLC, a division of On Assignment,
Inc., its affiliates, subsidiaries and parent companies (‘Company’)” on the
other. There is no dispute that Toothman signed as “Employee,” that an
Apex representative signed for “Company,” and that Redwood was not
included on the signature page. The Arbitration Agreement does not define
“affiliates.”
       When Toothman and Apex signed the Arbitration Agreement, they also
entered into the Employment Agreement, which refers to the Arbitration
Agreement as “Exhibit 1.” The Employment Agreement explains that Apex is
“engaged in the business of hiring contract employees to perform services on
a temporary basis to third party businesses,” which the Employment
Agreement then defines as “Clients.” Redwood does not dispute that it was
such a Client. Nor does Redwood contend that it shared ownership or means
of control with Apex.
       Under California law, we interpret a contract to give effect to the
mutual intention of the parties at the time they made the agreement.
(Civil Code, § 1636.) Companion contracts “relating to the same matters,
between the same parties, and made as parts of substantially one
transaction, are to be taken together.” (Id., § 1642.) A disputed contract
term is to be understood in its “ordinary and popular sense,” unless used by


                                        8
the parties in a technical sense. (Id., § 1644.) A guiding principle is that a
term takes meaning from the company it keeps, meaning in part that “a court
will adopt a restrictive meaning of a listed term if acceptance of a more
expansive meaning would . . . make the item markedly dissimilar to the other
items in the list.” (Almond Alliance of California v. Fish & Game Com.
(2022) 79 Cal.App.5th 337, 364). Another guiding principle is that “courts
must avoid interpretations that would render terms of an instrument mere
surplusage.” (Pear v. City and County of San Francisco (2021)
67 Cal.App.5th 61, 70.) We may look to contemporaneous dictionary
definitions to ascertain the meaning of a term. (See Mendoza v. Nordstrom,
Inc. (2017) 2 Cal.5th 1074, 1091.)
      Applying these principles, we agree with the trial court that the parties
did not intend to include “Clients” like Redwood in the Arbitration
Agreement’s definition of “Company.” Were it otherwise, the parties could
have added the term “Clients”—defined in the companion Employment
Agreement—to the Arbitration Agreement’s definition of “Company,” which
already included “affiliates, subsidiaries and parent companies.”
Alternatively, the parties could have used the term “affiliates” in place of the
term “Clients” in the Employment Agreement to describe entities like
Redwood. The parties did neither.
      In addition, shoehorning “Clients” into the term “affiliates,” as
Redwood proposes, would render “affiliates” markedly different from the
other terms in the list comprising “Company”—namely “Apex Life Sciences,
LLC, a division of On Assignment, Inc.” and its “subsidiaries and parent
companies.” Those terms are alike in that they involve common control or
ownership, as makes sense under the umbrella term “Company.” “Clients,”




                                        9
by contrast, were businesses connected to Apex through arms-length
contractual relationships.
      Nonetheless, Redwood proposes that “affiliates” should be understood
by reference to a dictionary definition as “ ‘[c]ompanies that have a [sic]
shared resources, interests, or business dealings,’ ” which it contends is broad
enough to cover “Clients” like itself. Aside from the considerations discussed
above that make such an interpretation unlikely, Redwood’s representation of
the proposed definition has two flaws. The first is that Redwood, citing its
own trial court papers, claims the definition comes from Black’s Law
Dictionary (Black’s), but those papers attribute it to an undated entry in The
Law Dictionary, an online resource “featuring Black’s Law Dictionary, 2nd
Ed.” (<https://thelawdictionary.org/affiliate> (as of March 11, 2026).) The
second edition of Black’s—published in 1910—does not define “affiliate” or
any related term. (See Black’s Law Dict. (2nd ed. 1910) p. 47, col. 1.) The
second, more significant, flaw is that Redwood does not provide The Law
Dictionary’s full entry, which ends by instructing the reader to “[r]efer to
su[b]sidiary.” (https://thelawdictionary.org/affiliate (as of March 11, 2026).)
The Law Dictionary defines “subsidiary” as an “[e]nterprise that is controlled
by another by owning more than 50 % of voting stock,” adding, “See affiliate.”
(<https://thelawdictionary.org/subsidiary> (as of March 11, 2026).) These
cross-references suggest relationships of ownership and control, consistent
with the language and the context of the Arbitration Agreement.
      Other dictionary definitions also include the notion of shared
ownership or control. Toothman offers the following definition for an
“[a]ffiliate company” from Black’s sixth edition: “Company effectively
controlled by another company. A branch, division, or subsidiary.” (Black’s
Law Dict. (6th ed. 1990) at p. 58, col. 2.) Black’s tenth edition, in circulation


                                        10
at the time the Arbitration Agreement was signed, defines “affiliate” as “[a]
corporation that is related to another corporation by shareholdings or other
means of control; a subsidiary, parent, or sibling corporation.” (Black’s Law
Dict. (10th ed. 2014) at p. 69, col. 2.)
      Redwood argues that a similar definition adopted by the trial court
impermissibly rendered “affiliates” surplusage because “subsidiaries” and
“parent companies” are already part of the “Company” definition. We
disagree. The two Black’s definitions are broader than just “subsidiaries” and
“parent companies”—they include sibling companies, branches, divisions, and
potentially other unlisted corporate-entity designations. (See Black’s Law
Dict. (6th ed. 1990) at p. 58, col. 2.; Black’s Law Dict. (10th ed. 2014) at p. 69,
col. 2.) “Affiliates” understood in light of these definitions—and the language
and context of the two agreements—is a useful catch-all, not a redundancy.
      The broader definitions Redwood offers outside the context of corporate
entities are not persuasive because the Arbitration Agreement uses the term
“affiliates” in a provision listing corporate entities.
      Both parties cite decisions in which courts construe “affiliate” or a
similar term. (See, e.g., Grande v. Eisenhower Medical Center (2020)
44 Cal.App.5th 1147, 1164–1166; Iqbal v. Ziadeh (2017) 10 Cal.App.5th 1, 9–
12; Satterfield v. Simon & Shuster, Inc. (9th Cir. 2009) 569 F.3d 946, 955;
Flintkote Co. v. General Acc. Assur. Co. (N.D. Cal. 2006) 410 F.Supp.2d 875,
889; Everington v. Riesen (M.D. Fla. Aug. 15, 2024, No. 8:23-CV-2386-JLB-
NHA), 2024 U.S. Dist. Lexis 145331 at pp. *10–*13; Geier v. Mozido, LLC
(Del. Ch. Sept. 29, 2016, No. CV 10931-VCS), 2016 Del. Ch. Lexis 149 at pp.
*15–*18.) The decisions have limited relevance, however, because we must
give effect to the intentions of the parties in this case based on the agreement
at hand.


                                           11
      Redwood argues that provisions in the Employment Agreement show
an intent to benefit Clients, and thus, Redwood argues, “affiliates” must
include “Clients.” It points out, for example, that the Employment
Agreement provided for Client approval of hours, confidentiality obligations
relating to Client information and assignment of work product to the Client.
But these provisions do not make clear why the parties would choose to use
“Clients” in one place and “affiliates” in another if the parties meant them to
refer to the same entities. Nor do the provisions make clear why the parties
did not simply add “Clients” to the definition of “Company” if they meant it to
include “Clients.”
      In addition, all of these provisions apply to Apex employees who are on
“temporary assignment” with a Client. The question here, by contrast, is
whether the Arbitration Agreement was intended to cover claims arising
when Toothman was not employed by Apex and had been hired directly by
Redwood, i.e., claims arising from or related to employment that is not
subject to the Employment Agreement of which the Arbitration Agreement is
a part. Construing the agreements together, we find no such intent. For
example, the Employment Agreement explains the purpose of the Arbitration
Agreement as follows: “Agency [i.e., Apex] has a principal place of business
in Richmond, Virginia, but hires contract employees to work in numerous
geographic areas. To facilitate uniformity in the application of this
Agreement to the employees of Agency, Contract Employees are asked to
review and execute the Dispute Resolution Agreement that is attached as
Exhibit 1 to this Agreement.” Because a person hired directly by a Client is
not employed pursuant to the Employment Agreement, and the Arbitration
Agreement would not serve its stated purpose in that context, it is




                                      12
unreasonable to interpret the Arbitration Agreement as applying to such a
person.
      We also note that the final numbered paragraph of the Arbitration
Agreement states: “AT WILL EMPLOYMENT. This Agreement does not in
any way alter the at-will status of my assignment/employment.” The only
plausible reading of this provision is that it refers to the at-will status of the
employee with Apex (which is emphasized by bolded text in the Employment
Agreement) whom Apex has placed on an at-will assignment with a Client.
Apex would have no basis to make representations about the employment
status of a person hired directly by a Client, nor to refer to that person’s
“assignment.” For this reason, too, we find no intent to apply the Arbitration
Agreement to disputes arising between a Client and its own employees.
      As Redwood itself emphasizes, it learned of the existence of the
Arbitration Agreement when Apex produced it in response to a subpoena.
Contrary to Redwood’s assertion that its interpretation makes “practical
sense,” it is not sensible to posit that Apex arrogated to itself the right to
prescribe the dispute resolution procedure that governs employment disputes
between one of its Clients and that Client’s own employees—people who do
not have an employment relationship with Apex—let alone to do so without
notice to the Client. Moreover, the Arbitration Agreement bears the
“Signature of Authorized Company Representative,” yet Redwood’s
concession that it was not a signatory means the Apex representative who
signed was not authorized to act on Redwood’s behalf. 1 The evident absence


      1 At oral argument, Redwood confirmed its view that it was bound by

the Arbitration Agreement as a party to it. That was perhaps a necessary
concession for the narrow purpose of Redwood’s argument. But imagine a
hypothetical scenario in which Redwood preferred to resolve employment
disputes in court, while one of its employees, previously employed by Apex,
                                        13
of any intent to apply the Arbitration Agreement to disputes between a Client
and its own employees further undermines the contention that “Company,”
by the inclusion of the word “affiliates,” was intended to refer to Redwood.
                                       III.
      Redwood argues that if it was not an “affiliate[ ],” it was still entitled to
invoke the Arbitration Agreement as a third-party beneficiary. In support,
Redwood points to the provisions in the Employment Agreement discussed
above suggesting that it was “structured to protect the client workplace.” But
because Redwood was not an “affiliate[ ],” the conduct alleged in the
Complaint occurred after Toothman stopped working for “Company” and is
thus not within the scope of the agreement regardless of whether Redwood
could qualify as a third-party beneficiary. (Cf. Vazquez v. SaniSure, Inc.
(2024) 101 Cal.App.5th 139, 142–147 [arbitration agreement from employee’s
first period of employment did not cover controversy arising in employee’s
second period of employment with same employer].)
      Again, under the Arbitration Agreement, Toothman and “Company”
agreed “to arbitrate any dispute arising out of or related to [Toothman’s]
employment with, or termination of employment from, Company.” On



preferred arbitration. In an employment dispute with Redwood, the
employee serves an arbitration demand on the Apex officer designated in the
Arbitration Agreement, as the Agreement requires. Apex, seeing that the
demand concerns a dispute arising after the person’s employment with Apex
ended, forwards it to Redwood along with a copy of the Arbitration
Agreement. Redwood has never seen it before, is nowhere mentioned in it,
and did not authorize anyone at Apex to enter into such an agreement on its
behalf. The employee insists that the inclusion of the word “affiliates” means
that Redwood is nonetheless bound to arbitrate the dispute as a party to the
agreement. We would find the employee’s argument unpersuasive, and we do
not find it more persuasive here simply because Redwood is the party making
it.
                                        14
April 23, 2018, Toothman stopped working for “Company,” and two days later
he started working directly for Redwood. The Complaint alleges employment
violations by Redwood beginning on September 26, 2018, more than five
months after Toothman left his employment with “Company.”
      The claims in the Complaint thus “aris[e] out of or relat[e] to”
Toothman’s employment only with Redwood—not his employment with
“Company.” Toothman did not agree to arbitrate these claims with any
party, because they are outside the Arbitration Agreement’s substantive
scope. We therefore need not decide whether Redwood was a third-party
beneficiary. 2 Even if it were, the Arbitration Agreement would not apply to
the claims in the Complaint.
      For the same reason, we need not further address Redwood’s contention
that the Arbitration Agreement “did not terminate at the end of Toothman’s
employment with Apex,” which rests principally on its argument that the
term “affiliates” includes third-party businesses like Redwood that contracted
with Apex at arm’s length. Given our rejection of that argument above, we
conclude that the Arbitration Agreement would continue in effect only for the
purpose of resolving disputes arising out of or related to Toothman’s
employment with “Company”—not the claims in Toothman’s Complaint.


      2 To show that Redwood was an express or third-party beneficiary of

the Arbitration Agreement, Redwood asks us to take judicial notice of
evidence that (1) it was a subsidiary of the company named in the
Employment Agreement as the “Client” at which Toothman would be placed
and (2) Toothman knew that the placement was with Redwood. But taken as
true, these propositions do not affect our analysis or conclusion that Redwood
was not an “affiliate[ ]” under the Arbitration Agreement. They thus do not
affect our conclusion the Complaint’s claims do not arise out of or relate to
Toothman’s employment with “Company,” regardless of whether Toothman
was an express or third-party beneficiary. We therefore deny Redwood’s
request. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4.)
                                       15
                                      IV.
      Redwood lastly argues that Toothman is equitably estopped from
refusing to arbitrate his claims. Again we disagree.
      Under the doctrine of equitable estoppel, a plaintiff may not repudiate
the arbitration provision of an agreement that the plaintiff relies on to assert
claims against a nonsignatory defendant. (Gonzalez v. Nowhere Beverly Hills
LLC (2024) 107 Cal.App.5th 111, 118 (Gonzalez).) The doctrine requires that
the plaintiff’s claims be “dependent upon, or founded in and inextricably
intertwined with, the underlying contractual obligations of the agreement
containing the arbitration clause.” (Goldman v. KPMG, LLP (2009)
173 Cal.App.4th 209, 217–218.)
      Here, Toothman’s claims are in no way “dependent upon,” “founded in,”
or “inextricably intertwined with” the Arbitration Agreement or the
Employment Agreement. Redwood contends that Toothman originally “pled
his claims to include the Apex employment period.” But while both
complaints allege that Toothman began working for Redwood in January
2018—when Toothman was employed by Apex—the alleged misconduct in
both complaints started no earlier than September 2018, when Toothman
was directly employed by Redwood. 3 If the claims depend upon any
agreement, it is Toothman’s employment agreement with Redwood.


      3 At oral argument, Redwood suggested that under an emergency

tolling rule in effect during the COVID pandemic, Toothman could assert
claims extending as far back as April 2018, when he was still employed by
Apex. (See Cal. Rules of Court, Appendix I, adopted by the Judicial Council
on April 6, 2020, and amended on May 29, 2020 (Emergency Rule 9).) This
argument is forfeited because Redwood did not raise it in its appellate briefs.
(County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312, 1326,
fn. 10.) We would find the argument meritless in any event. Again, even
Toothman’s original pleading specified that the claims cover a period starting
four years before Toothman filed in September 2022. Thus, assuming
                                       16
      The decisions Redwood cites are distinguishable because none involves
a nonsignatory submitting an arbitration agreement that does not purport to
cover the subject matter of the underlying dispute, as is the case here. (See
Gonzalez, supra, 107 Cal.App.5th at pp. 115–119, 122–23 [addressing
equitable estoppel in context of claims arising from subject matter covered by
arbitration agreement]; Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 784–
785, 787–788 [same]; Boucher v. Alliance Title Co., Inc. (2005)
127 Cal.App.4th 262, 265–266, 272–273 [same].)
      Moreover, we do not agree that Toothman’s amendment to the class
definitions estops Toothman from contesting arbitration under the
Arbitration Agreement. After Apex produced the Arbitration Agreement in
response to Redwood’s subpoena, Toothman amended the class definitions to



Emergency Rule 9 operates as Redwood suggests—an issue on which we do
not opine—it would not support Redwood’s contention in support of equitable
estoppel that Toothman “artfully” amended the complaint to avoid the time
Apex employed him. More importantly, any decision by Toothman not to
assert claims for an additional period available to him by the operation of
Emergency Rule 9 would not constitute “misleading artful pleading” to avoid
equitable estoppel. (Cf. Gonzalez, supra, 107 Cal.App.5th at p. 127 [plaintiff
could not avoid equitable estoppel by omitting mention of the underlying
employment agreement on which the claims depend].) The artful pleading
doctrine prevents plaintiffs from avoiding some unwanted legal consequence
by mischaracterizing the nature of the claim they are asserting. (See, e.g.,
Baral v. Schnitt (2016) 1 Cal.5th 376, 392; Central Pathology Service Medical
Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191; Palomar Health v.
National Nurses United (2023) 97 Cal.App.5th 1189, 1203; Thomson v.
Canyon (2011) 198 Cal.App.4th 594, 606; Felton v. Schaeffer (1991)
229 Cal.App.3d 229, 239.) A decision to forgo certain claims or to limit the
period for which relief is sought does not fall into that category. (See
Hernandez v. Meridian Management Services, LLC (2023) 87 Cal.App.5th
1214, 1219 [equitable estoppel did not apply where the plaintiff declined to
sue the company with which she had an arbitration agreement and named
only functionally related firms for which she also worked].)
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exclude “any workers staffed with [Redwood] by a third party while those
workers were on assignment with [Redwood]” (while including “individuals,
such as [Toothman], who were both direct employees and non-direct/staffed
workers of [Redwood] at different periods of time,” but only for the time they
were direct employees of Redwood ). Redwood cites no authority in support of
its contention that the amendment was “essentially an admission that the
Arbitration Agreement governs the relationship with Redwood and that
Toothman’s claims are founded in and intertwined with that relationship.”
Like the Complaint, the original pleading alleged claims arising only from
Toothman’s direct employment with Redwood, after he had left Apex. A class
amendment presumably designed to avoid other possible arbitration
agreements involving other possible employees does not constitute an
admission that Toothman’s claims—on his own behalf or on behalf of the
class—are founded in or intertwined with the Arbitration Agreement.
                               DISPOSITION
      The order denying Redwood’s motion to compel arbitration is affirmed.
Toothman is entitled to recover his costs on appeal.
                                           GOLDMAN, J.

WE CONCUR:

BROWN, P. J.
STREETER, J.




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Trial Court:                Sonoma County Superior Court

Trial Judge:                Honorable Christopher M. Honigsberg

Counsel for Defendant and   Seyfarth Shaw, Michele J. Beilke, Julia
Appellant:                  Y. Trankiem, Steven A. Morphy

Counsel for Plaintiff and   Blumenthal Nordrehaug Bhowmik De
Respondent:                 Blouw, Norman B. Blumenthal, Kyle R.
                            Nordrehaug




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