[00:00:00] Speaker 00:
Good morning, Your Honors.

[00:00:01] Speaker 00:
May it please the Court, Thomas Segal for Appellant Robert La Cour.

[00:00:05] Speaker 00:
So, I'll start with the mailbox rule.

[00:00:08] Speaker 00:
The mailbox rule, well, first of all, let me say I'll reserve five minutes for a bottle.

[00:00:15] Speaker 00:
I don't think the mailbox rule was properly applied here, because when you think about the mailbox rule, you think about an individual who says, I took the envelope, I addressed it to Robert La Cour, I put a stamp on it, and I deposited it in the mailbox.

[00:00:31] Speaker 00:
What you have here is piecemeal declarations, some of which were submitted in reply, with a declarant from Marshall's or TJX Corporation saying essentially we provided a list with all of our employees, we gave it to the vendor, and you then have a declaration from the vendor which says the company took the list and we did the mass mailing.

[00:00:54] Speaker 00:
And so, in light of that, I think that Mr. Lacour's, as the district court put it, unequivocal denial should carry the day.

[00:01:04] Speaker 00:
But even if we grant that the mailing occurred and that he received it, the rule that really comes into play here is the rule of contractual interpretation

[00:01:17] Speaker 02:
about when silence can be deemed to be sent to an agreement.

[00:01:28] Speaker 02:
maybe confusing aspects of the district court's order was whether it was applying a federal common law mailbox rule or the California mailbox rule.

[00:01:36] Speaker 02:
Because the court seemed to operate from the premise that a simple denial that the mailing was received was insufficient to rebut it.

[00:01:46] Speaker 02:
But under California, as I understand it, a simple denial would be enough and then you need to have a try or fact decide and weigh the evidence and decide whether the mailing did in fact take place or not.

[00:01:56] Speaker 02:
Is it your view that the court applied a federal common law mailbox rule or the California rule?

[00:02:02] Speaker 00:
I think the court did apply the federal rule.

[00:02:05] Speaker 01:
I think the case... What in the record makes you say that the court applied the federal mailbox rule?

[00:02:14] Speaker 00:
It is the case that the district court cited to, and it's an arrest case, if I can find it.

[00:02:36] Speaker 00:
You're on your seven chicory against Bank of America That's right your honor chicory versus Bank of America And that is a federal or risk a case and there's a subsequent case I believe called pronouns a district court decision which points out that Because that's an arrest a case it applies the federal version of the mailbox rule not the California version and so I mean, I don't know

[00:03:01] Speaker 00:
So what that means, I think, is the district court just said, well, this denial is not enough by itself to rebut the presumption.

[00:03:09] Speaker 00:
And so I don't think the district court weighed the evidence.

[00:03:12] Speaker 00:
I don't think the district court made a finding of fact.

[00:03:15] Speaker 00:
And we would submit.

[00:03:16] Speaker 00:
that had the district court made a finding of fact that finding should have been that Mr. Lacour's denial, which after all was direct evidence, he is the person who knows whether he received it, he's certainly a percipient witness and it's not clear that there's actually any percipient witness to the mailing to Mr. Lacour.

[00:03:37] Speaker 00:
Mr. Lacour's declaration to now should have prevailed under these facts.

[00:03:42] Speaker 03:
Suppose we agree with you on that and we think the district court was wrong to conclude that he had received the mailing.

[00:03:54] Speaker 03:
There was also this sort of series of meetings and the website and a postcard which his declaration conspicuously does not deny that he received.

[00:04:05] Speaker 03:
So, what do we do with all of that?

[00:04:09] Speaker 00:
Well, let's start with the postcard, because what I would say about the postcard is that, you know, this postcard has never been introduced into evidence.

[00:04:17] Speaker 00:
We don't know what it says, and what Mr. Lacour did in his declaration was he attached the arbitration agreement and he said, I've never seen this before.

[00:04:25] Speaker 00:
And so,

[00:04:26] Speaker 00:
You know, I think it's difficult to deny receiving a postcard that you haven't seen, right?

[00:04:35] Speaker 00:
And as far as the meetings, I mean, look, I understand the district court's order, the footnote, as

[00:04:43] Speaker 00:
at least implicitly rejecting any reliance on either the meetings or the website.

[00:04:48] Speaker 00:
I mean, the district court expressly pointed out that Mr. Lacour's visit to the website was several years after the deadline for him to opt out if the agreement had occurred.

[00:05:01] Speaker 00:
So that part of it is certainly, I think, not a strong point for marshals.

[00:05:06] Speaker 00:
And as far as the in-store meetings, I mean, there is no

[00:05:12] Speaker 00:
evidence that he attended the meetings.

[00:05:15] Speaker 00:
They're trying to make a leap of logic that these meetings, according to the declaration of Sharon Simons, were scheduled to occur on the following dates.

[00:05:25] Speaker 00:
Mr. Lacour's time and punch records show

[00:05:28] Speaker 00:
that he was in the store on those dates, therefore he attended the meetings.

[00:05:32] Speaker 00:
I don't think that's really a reasonable inference.

[00:05:36] Speaker 00:
Certainly not when Wade against Mr. Lacour saying, I don't recall attending any such meetings.

[00:05:43] Speaker 00:
But he didn't say he didn't attend, he just said he didn't recall.

[00:05:48] Speaker 00:
Yeah, I think he said he didn't recall, I think that's right.

[00:05:51] Speaker 00:
And what I think that in a way leads us back to this same issue, you know, if we assume he received the letter, and that is when is silence sufficient to indicate assent?

[00:06:07] Speaker 00:
And the gentry decision actually, even though it's usually cited for something completely different, has a very detailed discussion of this, talking about the restatement of contracts and saying that in order for silence to constitute assent, there has to be some conduct which leads the person making the offer to believe that by being silent, in this case by not opting out, they're assenting to it.

[00:06:35] Speaker 00:
And in gentry,

[00:06:37] Speaker 00:
the employee receives the

[00:06:41] Speaker 00:
arbitration agreement as part of an employee handbook.

[00:06:44] Speaker 00:
There's an acknowledgement form for the employee handbook.

[00:06:48] Speaker 00:
And the acknowledgement form says something like, you know, by signing this, I agree that I understand that if I do not opt out within 30 days, I will be bound by the arbitration agreement.

[00:06:59] Speaker 00:
So that was what was sufficient in Gentry.

[00:07:03] Speaker 00:
We do not have anything like that here.

[00:07:06] Speaker 00:
And I think this is actually a through line in a number of different cases that we cite to.

[00:07:11] Speaker 00:
this court's Chibola versus Klasspass decision, you know, admittedly a very different context.

[00:07:17] Speaker 00:
You know, when does a click-wrap agreement on a website bind the consumer?

[00:07:24] Speaker 00:
But what this court said in Chibola is when you have

[00:07:30] Speaker 00:
a website, the only screens that are relevant for determining the ascent issue are screens where arbitration is mentioned and there is something, you know, like a check box or something where the consumer can indicate ascent.

[00:07:45] Speaker 00:
You know, similarly, again, a different context, but the Mendoza versus Valley Transportation case, Mendoza versus Valley Transportation, dealing with an employee handbook and, you know, similar to Chabola, it says,

[00:08:01] Speaker 00:
the pages that mentioned arbitration did not have any signature line, did not have anything where the employee could indicate their assent to the agreement.

[00:08:13] Speaker 03:
Going back to the postcard for a moment, you're right that the postcard itself does not appear to be in the record, or at least I didn't see it there.

[00:08:20] Speaker 03:
But we have the declaration from Ms.

[00:08:23] Speaker 03:
Simons, I guess.

[00:08:25] Speaker 03:
It says that the company sent a follow-up postcard to every associate's home address on February 15th to remind them to take action to opt in or out of the arbitration agreement.

[00:08:37] Speaker 03:
Under the case law that you were just talking about, if he actually got that postcard and then took no action, didn't investigate the agreement,

[00:08:49] Speaker 03:
I take it even under those cases that would be enough to have him bound by it, wouldn't it?

[00:08:55] Speaker 00:
No, I actually think under those cases that would not be enough because the missing step is some affirmative conduct to indicate a sense.

[00:09:04] Speaker 03:
But isn't the conduct continuing to be employed there even after having learned about the new policy?

[00:09:12] Speaker 00:
I mean, I would disagree with that because, I mean, look, an employer expects their employees to show up to work, right?

[00:09:20] Speaker 00:
Showing up to work is the normal thing that people do, right?

[00:09:25] Speaker 00:
And if he had, for example, received the postcard but it got misplaced or he didn't understand it, you know, he's going to show up to work.

[00:09:34] Speaker 00:
People show up to work.

[00:09:36] Speaker 00:
It's, I don't think, and again, in gentry,

[00:09:40] Speaker 00:
it was the signature page on the handbook that was dispositive.

[00:09:46] Speaker 00:
And so that would be our position that just showing up to work in and of itself is not enough.

[00:09:53] Speaker 02:
And don't the California cases also talk about how arbitration provisions have to be clear and conspicuous and, you know, sort of pointed to in a more direct kind of way?

[00:10:03] Speaker 02:
Do we know anything about the postcard about what the contents of it were or how specific it was as to the arbitration provision that Marshalls was trying to roll out?

[00:10:14] Speaker 00:
No, we don't and of course we don't know, you know, what it said and how that would have been understood by somebody who didn't receive the original arbitration agreement, right?

[00:10:26] Speaker 01:
Was that issue raised in the district court?

[00:10:30] Speaker 01:
regarding the content of the postcard and how obvious it was.

[00:10:34] Speaker 01:
Was that issue raised?

[00:10:35] Speaker 00:
No, I don't think so.

[00:10:37] Speaker 00:
But I don't think the district court addressed it in the order either.

[00:10:41] Speaker 01:
Well, if it wasn't raised, the district court wouldn't necessarily address it, right?

[00:10:48] Speaker 00:
Yeah, I mean, there was no reason for the district court to address it, I don't think, but I don't think the district court in its order relied in any way on the postcard.

[00:10:58] Speaker 00:
I don't think the district court said, well, even if he didn't receive the letter, he received the postcard.

[00:11:05] Speaker 00:
I don't believe that's in the order.

[00:11:08] Speaker 00:
So I will end this.

[00:11:10] Speaker 03:
Do you agree with the proposition, which I think your friends on the other side say, that in California, someone in the position of Mr. Lacour, who can be on constructive notice of the policy, even if he didn't know about it, if a reasonably prudent person in his

[00:11:32] Speaker 03:
position would have found out about it.

[00:11:35] Speaker 03:
That is enough.

[00:11:37] Speaker 03:
Do you agree with that as a statement of California law?

[00:11:42] Speaker 00:
I'm not sure that I do.

[00:11:44] Speaker 00:
I mean, I understand the idea of constructive notice, but, you know, I mean, I think that would be a situation where, you know, for example, he checked a box saying, I acknowledge the arbitration agreement, and then, you know, provides a declaration saying, well, I didn't read it.

[00:11:59] Speaker 00:
I didn't know what it meant.

[00:12:01] Speaker 00:
That, I think, would be a constructive notice situation, you know, not a situation where he never received the agreement in the mail.

[00:12:13] Speaker 00:
And so I'll reserve the rest of my time unless the court has more questions.

[00:12:16] Speaker 01:
All right.

[00:12:17] Speaker 01:
It appears not.

[00:12:17] Speaker 01:
Thank you, counsel.

[00:12:18] Speaker 01:
Thank you.

[00:12:33] Speaker 04:
May it please the court.

[00:12:34] Speaker 04:
My name is Brad Schwann, and I represent the Defendants and Appellees Marshals of California, LLC, Marshals of Massachusetts, Inc.

[00:12:42] Speaker 04:
and the TJS Companies Inc., TJX Companies Inc., which I'll refer to collectively as Marshalls.

[00:12:49] Speaker 04:
Your Honors, in this combined appeal of the district court's orders, compelling arbitration of Appellant LeCoureur's wrongful termination, retaliation, and intentional infliction of emotional distress claims to arbitration in what we refer to as in the individual action, and dismissing his class claims and compelling his individual wage and hour claims to arbitration,

[00:13:12] Speaker 04:
what we refer to as the class action, the district court reviewed the record evidence in this case and made two separate and distinct yet equally important findings.

[00:13:21] Speaker 04:
Lacour had notice of the arbitration agreement, and number two, his failure to opt out combined with his continued employment constitutes implicit consent to the agreement.

[00:13:33] Speaker 04:
Based on these two findings, the court correctly held that, quote, Marshall's has met its burden of proving the existence of an agreement.

[00:13:40] Speaker 01:
both parties are bound to it, end quote.

[00:13:56] Speaker 04:
I agree that the district court applied the mailbox rule and I disagree that there's a difference between the two.

[00:14:01] Speaker 01:
Well, did it apply federal law or California law in making that ruling?

[00:14:06] Speaker 04:
I believe that it applied the mailbox rule and I don't think there's a difference between the federal mailbox rule and what's been referred to as the California mailbox rule.

[00:14:13] Speaker 01:
Okay, so if we disagree with you and think there is a difference between the California rule, the California

[00:14:23] Speaker 01:
law and federal law, do you lose?

[00:14:26] Speaker 04:
No.

[00:14:27] Speaker 04:
I think that the court applied the mailbox rule in a way that the result would be the same regardless.

[00:14:33] Speaker 04:
But I don't believe that there really is a difference between the two.

[00:14:36] Speaker 01:
If California law says that a denial is sufficient to rebut the presumption of delivery,

[00:14:44] Speaker 01:
How does that affect your argument?

[00:14:46] Speaker 04:
I don't think that's what California law says.

[00:14:48] Speaker 04:
The Craig v. Brown and Root case is the only case that discusses this premise.

[00:14:52] Speaker 04:
It's a court of appeal case in California and it states that, it uses the phrase that the presumption disappears.

[00:15:01] Speaker 04:
But I don't think that in operation acts any differently than the federal mailbox rule.

[00:15:05] Speaker 04:
Essentially what happens with respect to the mailbox rule is

[00:15:10] Speaker 04:
The difference between, here's what I would say is the only difference between the federal and the state when we talk about the mailbox rule, is that the mailbox rule in federal common law is created by judges and case law.

[00:15:22] Speaker 04:
California's mailbox rule is created by statute.

[00:15:25] Speaker 04:
But the thing that is created by the mailbox rule is the rebuttable presumption.

[00:15:30] Speaker 04:
But how the evidence is weighed is the same in both state and federal law.

[00:15:35] Speaker 04:
So in state court,

[00:15:40] Speaker 04:
Bear with me one second.

[00:15:43] Speaker 04:
So the California evidence code section 641 says a letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.

[00:15:54] Speaker 04:
That's the mailbox rule.

[00:15:55] Speaker 04:
It creates the rebuttable presumption.

[00:15:57] Speaker 01:
Right.

[00:15:57] Speaker 01:
And what is sufficient to rebut that presumption in California?

[00:16:01] Speaker 04:
Well, so California evidence code section 604 discussing rebuttable presumptions generally, it says the effect of a presumption

[00:16:09] Speaker 04:
Affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact Unless and until evidence is introduced which would support a finding of its non-existence In which case the trier of fact shall determine the existence or the non-existence of the presumed fact from the evidence without regard to the presumption So the evidence in this case was the Declaration from the plaintiff that he didn't receive it correct correct and so

[00:16:38] Speaker 01:
What weighing of the evidence did the district court do in your opinion?

[00:16:43] Speaker 04:
It weighed the declaration of Sharon Simons and the declaration of John Quinlan against the declaration of the plaintiff.

[00:16:49] Speaker 04:
And to be clear, the court did weigh that evidence.

[00:16:54] Speaker 04:
The appellant is not wrong in that in a footnote, the court addressed the evidence with respect to the meetings and the websites and discounted it.

[00:17:05] Speaker 04:
That proves that the court was engaging in weighing of the evidence as opposed to some sort of rote application of a differing mailbox rule.

[00:17:13] Speaker 03:
So what I would say is... That doesn't seem to be what the court said.

[00:17:16] Speaker 03:
I mean, I'm looking at page eight of the ER, page six of the order, and he says, you know, you've got the...

[00:17:26] Speaker 03:
The testimony of mailing creates a presumption of receipt, right?

[00:17:30] Speaker 03:
Everybody agrees that's how the presumption works.

[00:17:33] Speaker 03:
Then he says the court's only rebuttal is his bare bones declaration that he never received the agreement.

[00:17:38] Speaker 03:
this simple denial is insufficient to overcome the presumption.

[00:17:44] Speaker 03:
So that doesn't sound like the presumption disappears and now I'm weighing the evidence and finding that he got it.

[00:17:51] Speaker 03:
That sounds like there's a presumption and I'm applying the presumption because this declaration isn't enough to get me past the presumption.

[00:17:58] Speaker 04:
No, I think what's happening is that this court along with the other district courts in applying the mailbox rule weighing the evidence and saying in light of evidence

[00:18:06] Speaker 04:
that a mailing was in fact mailed, in our view, the existence of, and this is where it's important, the court doesn't just say there's just a declaration where the plaintiff says X. The court calls it the bare bones declaration.

[00:18:20] Speaker 04:
This is an adjective describing its weight of the evidence.

[00:18:24] Speaker 04:
He's viewing this declaration as nothing more than bare bones.

[00:18:27] Speaker 03:
But what sort of declaration of non, I mean,

[00:18:32] Speaker 03:
If you didn't get a letter, I don't know what more, what elaboration could you provide other than I didn't get this letter.

[00:18:40] Speaker 04:
I mean, I suppose any number of things is I check my mail every day.

[00:18:45] Speaker 04:
I look at the mail.

[00:18:46] Speaker 04:
I'm aware when I get things from a company, I do this.

[00:18:49] Speaker 04:
When I get letters, I look at every single one that's there to make sure that I didn't throw something away.

[00:18:53] Speaker 04:
There's all sorts of things that could exceed a bare bones denial.

[00:18:57] Speaker 04:
And this is actually what's important here is

[00:18:59] Speaker 04:
What's clear from the record is the court did review and weigh the evidence, and this court shouldn't overturn that finding, absent some sort of clear... But what finding was it?

[00:19:11] Speaker 02:
I guess I share the confusion.

[00:19:12] Speaker 02:
What finding did it make about the mailing?

[00:19:14] Speaker 02:
It applied a presumption.

[00:19:16] Speaker 04:
No, it made a finding that the mailing occurred, because that's the first step for the rebuttal.

[00:19:19] Speaker 02:
Where?

[00:19:20] Speaker 02:
Because it's, I mean, Judge Miller just read the sentence.

[00:19:24] Speaker 04:
Page eight of the ruling from which we were just speaking.

[00:19:29] Speaker 04:
Marshall's presents the testimony of TJX's vice president, who oversaw the mailing rollout, provided evidence of paid postage, and corroborated Lacour's home address, which Lacour does not dispute with his residence at the time.

[00:19:43] Speaker 04:
Lacour countered that the testimony of Quad, the company who handled the physical mailing, was necessary.

[00:19:49] Speaker 04:
In response, Marshals provided Quad's testimony to create a presumption that Lacour received the agreement.

[00:19:55] Speaker 02:
That's the operation of the presumption.

[00:19:58] Speaker 04:
Well, right, but it's evidence that leads to the presumption.

[00:20:01] Speaker 02:
And Lacour's only rebuttal is his bare-bones declaration that he never received the agreement.

[00:20:07] Speaker 02:
But as I read Craig, it said once you have a denial, the trier of fact must then weigh the denial of receipt against the inference of receipt and decide whether or not the letter was received.

[00:20:19] Speaker 04:
And the court did that.

[00:20:21] Speaker 02:
The court is saying a bare bones denial is not enough to overcome a presumption.

[00:20:26] Speaker 02:
It's not weighing evidence as to well now I've got two competing versions and I decide I make a finding that the mailing did in fact occur.

[00:20:34] Speaker 04:
But that's what all the district courts have done when they've applied this presumption and then subsequently weighed the evidence.

[00:20:42] Speaker 04:
And this court was following the lead of other courts in the 9th Circuit.

[00:20:46] Speaker 02:
That may be, but I wonder if the courts are not applying the California mailbox rule instead of a sort of misapplied federal common law rule.

[00:20:57] Speaker 04:
Well, but again, I dispute that there is a different rule.

[00:21:00] Speaker 04:
So going back to the California rule of evidence,

[00:21:04] Speaker 04:
With California evidence code section 604 discusses this and says the effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its non-existence.

[00:21:21] Speaker 04:
in which case the trier fact shall determine the existence or non-existence of the presumed fact from the evidence and without regard to the presumption.

[00:21:30] Speaker 02:
That's what the court's been doing.

[00:21:31] Speaker 02:
As Judge Rawlinson pointed out, a denial, his declaration that he denies it is evidence to rebut the presumption, but the district court didn't cite evidence code 604, but also said a simple denial is not enough.

[00:21:46] Speaker 04:
Correct.

[00:21:47] Speaker 04:
The final sentence of evidence code section 604 says nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.

[00:21:56] Speaker 04:
And that's the whole underpinning of the mailbox rule in general.

[00:21:59] Speaker 04:
The idea is, yes, we recognize that there's a situation when someone puts something in the mail that we don't always have direct evidence to establish that.

[00:22:08] Speaker 04:
And so we've created this rebuttable presumption.

[00:22:10] Speaker 04:
Thereafter, once evidence is introduced to contradict that, then the court needs to engage in a weighing exercise and make the determination.

[00:22:19] Speaker 04:
That is the California rule, along with the federal rule.

[00:22:22] Speaker 04:
It's just that the district courts have repeatedly held, when we're engaging in this exercise of weighing the evidence, we have historically found that a bare bones declaration that does nothing more than deny receipt, when I compare that to evidence that has established that in fact the mailing did occur,

[00:22:39] Speaker 04:
district courts have repeatedly held in that instance we're going to find that that's not that evidence is not sufficient let's assume that we don't agree with that position where does that leave you with with this if that leaves us with the case the plaintiff cited which is Craig versus Brown route where this exact same thing occurred so the court articulated

[00:22:59] Speaker 04:
What I think is nothing different than the mailbox rule articulated in the federal rules, but articulated what it's deemed this California mailbox rule and that presumption then disappeared.

[00:23:09] Speaker 04:
And what happened in Craig versus Brown route is the court's application of the facts.

[00:23:13] Speaker 04:
to the evidence in front of it, and it determined that, in fact, receipt occurred.

[00:23:18] Speaker 04:
And then it said, so we can't disturb that claim.

[00:23:19] Speaker 02:
But I guess my question is, if we conclude that the district court did not make a factual finding as to the mailing, do we rescind this case back for the court to make that threshold factual determination?

[00:23:32] Speaker 04:
But they did make the court did clearly make a fine.

[00:23:35] Speaker 02:
I think because it would let me let me ask it a third time.

[00:23:37] Speaker 02:
If we don't agree with your position that the court made a factual finding if it didn't where does that leave you.

[00:23:46] Speaker 04:
We wouldn't even be talking about the mailbox rule because the mailbox rule only comes into play.

[00:23:51] Speaker 02:
I guess I guess the question that the district courts ruling is it based wholly on the mailbox rule and and and and how it applied it.

[00:24:02] Speaker 04:
For the portion of receipt, application of the mailbox rule is what occurred for the court to reach the conclusion that there was an agreement.

[00:24:10] Speaker 04:
But it was a two-part ruling.

[00:24:12] Speaker 04:
And I would like, in my remaining time, to address this issue about assent and gentry.

[00:24:17] Speaker 04:
So gentry is California's Supreme Court case.

[00:24:20] Speaker 04:
And what it did discuss is, in the particular instance, an employee received an agreement and an acknowledgment and signed that acknowledgment and said, I realize that if I

[00:24:32] Speaker 04:
continue my employment, then I'll be bound to this agreement.

[00:24:35] Speaker 04:
Gentry did not create a new rule, however, that said that that is the sole basis by which assent can be required.

[00:24:41] Speaker 04:
The case law is replete with cases, both in California and in the district courts, and the Ninth Circuit that says, if you're on notice, then continued employment does constitute acceptance of the agreement.

[00:24:54] Speaker 04:
So that's an important piece to this issue.

[00:24:58] Speaker 04:
You know, once you get past the mailbox rule, if the employee is in fact on notice, which is that's what the finding was at the district court, is receipt occurred.

[00:25:08] Speaker 04:
then the agreement has that property.

[00:25:10] Speaker 02:
As I understand it, and I read the cases similarly, if there is notice of this arbitration agreement, I think Avery and Craig both speak to this, and you continue to work there, then that could be an implied assent to those terms if you continue to work there.

[00:25:28] Speaker 02:
But I think to me the crucial question is,

[00:25:30] Speaker 02:
Is there any evidence that he, any direct evidence that he saw this agreement or, you know, if it weren't mailed to him?

[00:25:40] Speaker 02:
Is there anything else, you know, from the informational meetings or any other direct evidence that you may have seen it?

[00:25:45] Speaker 04:
So I would say that, you know, I actually believe, like I said, I think the mailbox rule is the mailbox rule, whether it's California, whether it's federal, the same thing occurs, that there's this first step that needs to occur.

[00:25:57] Speaker 04:
And this is, again, where I would go back to the clearly erroneous standard,

[00:26:00] Speaker 04:
is the court definitely made the factual finding that the mailing occurred.

[00:26:04] Speaker 04:
So separate from the second step of the mailbox rule as to whether receipt occurred, there was a finding the mailing occurred.

[00:26:11] Speaker 04:
And that can't be disturbed barring some sort of finding that it was clearly erroneous.

[00:26:15] Speaker 04:
So right now, appellants trying to second guess and saying, well, there's no direct evidence of this, and it's this patchwork or declaration.

[00:26:22] Speaker 04:
The court went through that analysis and clearly established that the mailing occurred.

[00:26:26] Speaker 01:
But that was at the presumption phase of it.

[00:26:29] Speaker 04:
I'm sorry?

[00:26:30] Speaker 01:
That was at the presumption phase of the analysis, but the court never made a factual finding that the letter was mailed, actually mailed.

[00:26:42] Speaker 01:
It dealt with the presumption and said the presumption was not rebutted.

[00:26:47] Speaker 04:
The presumption doesn't come into play unless the finding is made that the mailing occurred.

[00:26:52] Speaker 04:
The result of the rebuttable presumption associated with the mailbox rule is that once we've determined that a mailing occurred, we're going to presume receipt.

[00:27:03] Speaker 04:
But the court made the factual finding that the mailing occurred.

[00:27:07] Speaker 04:
And then it said, OK, now we've made this factual finding.

[00:27:10] Speaker 01:
Where in the court's order did it say the mailing actually occurred?

[00:27:15] Speaker 01:
What?

[00:27:16] Speaker 04:
Marshall's presents the testimony as page 8.

[00:27:20] Speaker 01:
Right.

[00:27:21] Speaker 01:
That's the testimony.

[00:27:22] Speaker 01:
that establishes the presumption.

[00:27:26] Speaker 04:
Correct.

[00:27:26] Speaker 04:
And again, the presumption doesn't exist unless the court has found evidence that the mailing occurred.

[00:27:32] Speaker 04:
The mailbox ruling is, I said I put a mail in the mailbox, and you say you didn't receive it.

[00:27:40] Speaker 04:
Because I have found that you put that letter in the mailbox, and there is sufficient evidence to say that you put that letter in the mailbox, I am now saying, OK, we've met evidence code 604, that once you've established evidence that the letter went in the mailbox, now it's a rebuttable presumption that you received it.

[00:27:58] Speaker 04:
So the court wouldn't engage in the mailbox rule analysis unless it had made the first step in finding that the mailing had in fact occurred.

[00:28:07] Speaker 04:
There would be no need to engage in mailbox rule analysis if the court hadn't even reached the threshold question of, did the mailing actually even happen?

[00:28:15] Speaker 04:
So that finding was made, and I think it's explicit, but it's certainly implicit by the actual application of the mailbox rule.

[00:28:22] Speaker 03:
Can I ask you, I think you were asked this a couple times already, but just to be completely clear on your answer,

[00:28:28] Speaker 03:
Did your case turns on this whole question of the mailing and so if we if we don't agree with you that there was a mailing that was received

[00:28:37] Speaker 03:
You're not suggested that there aren't findings that you're saying could support Affirmance on the basis of the the postcard and the Meetings and all that if you'll briefly indulge me sure I didn't get a chance to address Shaboya or Shabola or how could you just please answer the question are you taking the position that there is something other than the mailing and

[00:29:02] Speaker 01:
Yes.

[00:29:04] Speaker 01:
What in the record, other than the mailing, would have given notice?

[00:29:07] Speaker 04:
The postcard and constructive notice.

[00:29:08] Speaker 01:
But I thought you said the district court didn't rely on those.

[00:29:11] Speaker 04:
Well, I'm saying that this court can rely on it if it doesn't apply an application to the mailbox rule.

[00:29:16] Speaker 04:
And in Sheboyah, it deals with kind of four stages of what we call the browse wrap, the click wrap, the screen wrap, and then the sign-on wrap.

[00:29:26] Speaker 04:
And for browse wrap, which is basically

[00:29:29] Speaker 04:
You know, we don't really know.

[00:29:30] Speaker 04:
There's really no information in the agreement you're just scrolling through.

[00:29:33] Speaker 04:
Click wrap is I click and acknowledge.

[00:29:36] Speaker 04:
And then there's this one called sign wrap, which is it's all over the website.

[00:29:40] Speaker 04:
Like, only a dummy wouldn't get it, but we never actually required you to click on something.

[00:29:44] Speaker 04:
And the court in Shiboya said, courts will find that that's enforceable.

[00:29:47] Speaker 04:
It's kind of this constructive notice concept that you were talking about.

[00:29:50] Speaker 04:
And then separately,

[00:29:51] Speaker 04:
I think your honor noted the issue about the postcard.

[00:29:54] Speaker 04:
It wasn't denied, you were put on notice that an arbitration agreement went out and you either need to opt in or opt out.

[00:29:59] Speaker 03:
The actual language of the postcard is not in the record, is it?

[00:30:03] Speaker 04:
No, the only thing that's in the record is the language from Sharon Simons where she articulates what's in the agreement and it was undisputed.

[00:30:10] Speaker 02:
How applicable are these internet-based contract cases at the end of the day?

[00:30:16] Speaker 02:
They seem a little bit far-field because, as you said, there are these different

[00:30:20] Speaker 02:
forms that the contract might take on the website and whether you have to click to another link and click an I accept button or not.

[00:30:27] Speaker 02:
To me the more applicable cases seem to be Avery and Craig where there's a threshold factual determination that either an employee handbook was

[00:30:39] Speaker 02:
And in Craig, because a trial court found that it was received, then there was this implied consent.

[00:30:50] Speaker 02:
In Avery, when the court found that an employee handbook was not received,

[00:30:56] Speaker 02:
the arbitration agreement was not enforceable.

[00:30:59] Speaker 02:
And so as I read those cases there has to be at least some, even if not direct evidence, well at least direct evidence of receipt or a factual finding, a threshold factual finding by a court about whether these things were in fact received or not.

[00:31:15] Speaker 04:
Do you agree with that or no?

[00:31:18] Speaker 04:
I do, and I think that what occurred here is that a factual weighing did occur.

[00:31:23] Speaker 04:
There was a weighing that, did this mailing occur or not?

[00:31:27] Speaker 04:
It did, the court found that, and thus then went to the next step of applying the mailbox rule.

[00:31:34] Speaker 04:
once applying the mailbox rule, the presumption was rebutted by a declaration, and then the court engaged in a weighing exercise.

[00:31:41] Speaker 02:
And I understand that argument, but that would seem to undercut any notion of constructive notice, because there it's not about constructive notice by someone, it's did you actually receive it.

[00:31:54] Speaker 02:
which isn't to say that you have to have read, it's not to say that you have to have read the arbitration provision, but if you received the document that contains the arbitration provision, then you might be constructively aware of it inside, but you need to have that determination whether someone got the document or not.

[00:32:11] Speaker 04:
Agreed, and I think that issue was not considered or was not a basis for the court's decision in this case.

[00:32:16] Speaker 04:
I just wanted to address it because you were asking, do you think it's another basis why this agreement could have been found or the plaintiff could have been found to be on notice of it?

[00:32:24] Speaker 04:
But I agree, it wasn't central to this case.

[00:32:26] Speaker 01:
If we come to the conclusion that the district court didn't actually weigh the evidence, would you be amenable to a remand for the district court to actually do that?

[00:32:38] Speaker 04:
I don't agree that that's what happened.

[00:32:40] Speaker 04:
I don't think that would be the correct answer.

[00:32:41] Speaker 01:
But I'm asking you, if we, the deciders of this case, determined that the district court did not weigh the evidence, would you be amenable to a remand for the district court to weigh the evidence?

[00:32:56] Speaker 04:
Not to be cute, but I'm not sure what the alternative option would be if you were to remand, assuming that that was your decision.

[00:33:04] Speaker 01:
Well, but that would be for the district court to determine, not for you to determine.

[00:33:08] Speaker 01:
the district court, what the district court's options would be.

[00:33:11] Speaker 01:
If we sent it back for the district court to reweigh it, I'm sure the district court would know what to do.

[00:33:16] Speaker 04:
For sure.

[00:33:17] Speaker 04:
I mean, not to disagree, I just wasn't sure exactly what the, if there was some sort of alternative option, but yes, if the court remands this case, then my presumption would be, it would be on the idea that the evidence wasn't weighed and the court would engage in that weighing exercise more explicitly.

[00:33:31] Speaker 04:
But again, I think that that's what occurred here.

[00:33:33] Speaker 01:
But you would not be in favor of that.

[00:33:36] Speaker 04:
No, I think we should win.

[00:33:37] Speaker 01:
All right.

[00:33:37] Speaker 01:
Thank you, counsel.

[00:33:38] Speaker 04:
All right.

[00:33:39] Speaker 04:
Thank you.

[00:33:51] Speaker 00:
So

[00:33:53] Speaker 00:
Opposing counsel, I think, made the argument that the district court must have made a factual finding that the mailing occurred because he applied the presumption.

[00:34:03] Speaker 00:
I think one case that shows that that's an erroneous logical conclusion is the Bunsen v. Huntington Park case, because in that case they discussed the presumption

[00:34:14] Speaker 00:
They essentially say the evidence of mailing was exceedingly weak, but they discussed the presumption.

[00:34:21] Speaker 00:
They say the presumption is rebutted.

[00:34:23] Speaker 00:
And in that particular instance, they went on to say that it would not be reasonable to have made a finding.

[00:34:33] Speaker 00:
that there was mailing or receipt.

[00:34:35] Speaker 00:
And, you know, I think this case is actually pretty similar to Bonser in that respect.

[00:34:39] Speaker 00:
I mean, nobody's saying, I mailed it to Robert McCall.

[00:34:46] Speaker 00:
you know a patchwork of declarations one of which is from a vendor essentially saying my company did the mass mailing that marshals asked us to and you know Mr. Lacour said I never received it so you know that's our view is that the uh... district court actually did not really make a finding on that the district court appears to have relied on case law saying that

[00:35:13] Speaker 00:
denial of receipt without more is not sufficient to rebut the presumption and So unless the court has any more questions, I will submit All right.

[00:35:26] Speaker 01:
Thank you counsel.

[00:35:27] Speaker 01:
Thank you to both counsel for your helpful arguments and