Wyer v. Tesla, Inc. et al. Document 44

California Court of Appeals
Case No. G062810
Filed May 31, 2024

Opinion filed.: (Signed Unpublished) The judgment is affirmed. (Gooding)/Bedsworth/Delaney

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Page 1 Filed 5/31/24 Wyer v. Tesla, Inc. CA4/
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAVID WYER,
Plaintiff and Appellant,
v.
G(Super. Ct. No. 30-2019-01118759)
TESLA, INC., et al.,
OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
David Wyer, in pro. per., for Plaintiff and Appellant.
Burke, Williams & Sorensen, Cheryl Johnson-Hartwell and Keiko J.
Kojima for Defendants and Respondents.
Page 2 After his employment at Tesla, Inc. (Tesla) was terminated, David Wyer
sued. Based on an arbitration provision in Wyer’s employment agreement, Tesla
obtained an order from the trial court compelling arbitration of Wyer’s claims. The
arbitrator found Wyer failed to prove any of his claims and awarded him no relief. On
Tesla’s petition, the trial court confirmed the arbitration award and entered judgment.
Wyer appealed.
We affirm. Wyer has not established he was substantially prejudiced by the
arbitrator’s limits on permissible discovery and on the time allotted for the arbitration
hearing. Nor can he show there was any ambiguity about which arbitration provision
governed his claims or that the applicable provision was unconscionable.
FACTUAL AND PROCEDURAL BACKGROUND
Wyer was hired by SolarCity Corporation (SolarCity) in 2015 as an
AutoCAD software engineer. Tesla acquired SolarCity in 2017, and Wyer’s employment
was transferred to Tesla. Wyer’s employee transfer agreement (Agreement), which he
signed on June 2, 2017, included an arbitration provision stating in relevant part as
follows: “[T]o ensure the rapid and economical resolution of disputes that may arise in
connection with your employment with Tesla, you and Tesla agree that any and all
disputes, claims, or causes of action, in law or equity, arising from or relating to your
employment, or the termination of your employment, will be resolved, to the fullest
extent permitted by law by final, binding and confidential arbitration in your city and
state of employment conducted by the Judicial Arbitration and Mediation
Services/Endispute, Inc. (‘JAMS’), or its successors, under the then current rules of
JAMS for employment disputes; provided that: [¶] . . . [¶] The arbitrator shall have the
authority to compel adequate discovery for the resolution of the dispute and to award
such relief as would otherwise be permitted by law . . . .”
Wyer’s employment with Tesla was terminated on January 18, 2019. In
December 2019, Wyer (who was then represented by counsel) sued Tesla and two of its
Page 3 employees, Wyer’s direct supervisor, Christopher Rollins, and Wyer’s coworker, Carson
Schafer. Wyer asserted claims against the defendants for discrimination, harassment, and
retaliation in violation of California’s Fair Employment and Housing Act (FEHA) (Gov.
Code, § 12940 et seq.); failure to prevent discrimination, harassment, and retaliation
under FEHA; failure to provide reasonable accommodations in violation of FEHA;
failure to engage in a good faith interactive process to determine effective reasonable
accommodations in violation of FEHA; declaratory judgment; wrongful termination in
violation of public policy; negligent supervision and retention; intentional infliction of
emotional distress; retaliation (Lab. Code, §§ 1102.5, 1102.6); failure to pay wages (id.,
§§ 201, 1182.12, 1194, & 1194.2); failure to indemnify (id., § 2802); failure to provide
itemized wage statements and waiting time penalties (id., §§ 201–203, 226 et seq.); and
unfair competition (Bus. & Prof. Code, § 17200). Wyer’s first amended complaint,
which is the operative complaint, was filed in February 2020.
Tesla filed a petition to compel arbitration and motion to stay the litigation
pursuant to the arbitration provision in the Agreement, which the trial court granted.
The arbitrator limited each party to five depositions as part of the discovery
plan and allowed the parties to seek leave to take additional depositions on a showing of
good cause. Eight months after the discovery plan was approved, and two months before
the scheduled arbitration hearing, Wyer had taken three of his five depositions. At that
time, he sought leave to depose another six individuals, as well as Tesla’s person most
knowledgeable (PMK) on four separate topics—for a total of at least seven, and
potentially 10, additional depositions. The arbitrator found “no good cause for increasing
the number of depositions at this late stage.”
The arbitrator initially ordered the arbitration hearing would occur over days, but the report of the preliminary hearing and scheduling order noted the length of
Page 4
the hearing was “[s]ubject to reconsideration.” The arbitrator later ordered the case
could be tried in a total of five days, rather than 10. In refining the time limits, the
arbitrator “urged [the parties] to be selective about the witnesses they present, to
introduce evidence through oral testimony when there is no other more effective means
of doing so, and to stipulate as much as possible to uncontested facts.” At the final status
conference, the arbitrator limited the parties to 15 hours each at the arbitration hearing.
The arbitration took place via Zoom on April 29 and May 2 through 5,
2022. Wyer called 10 witnesses, including seven fact witnesses and three experts. The
total time used by Tesla at the arbitration hearing was 13 hours and 34 minutes, while the
total time used by Wyer was 16 hours and 17 minutes; with Tesla’s concurrence, the
arbitrator allowed Wyer more than the 15 hours allotted. The arbitrator issued the final
award on October 4, 2022, finding Wyer failed to establish any of his claims.
Tesla filed a petition to confirm the final arbitration award pursuant to Code
of Civil Procedure section 1285, and Wyer filed a petition to vacate the arbitration award
pursuant to section 1286.2, subdivision (a)(5). After a hearing, the trial court granted
Tesla’s petition to confirm and denied Wyer’s petition to vacate. Judgment confirming
the arbitration award was entered and Wyer, now in propria persona, filed a timely notice
of appeal.

The transcript of the scheduling hearing is not part of the appellate record. An e-mail
from Tesla’s counsel to JAMS reads: “The arbitration hearing in this matter is set for
April 25 to May 6, 2022. At our original scheduling conference with Arbitrator Aragaki,
we discussed the fact that a full 10 days was unlikely to be necessary in order to arbitrate
this matter. Arbitrator Aragaki held 10 days for the hearing with the understanding that
all 10 days would be unlikely to be necessary and that the parties should discuss further
as the case progressed. [¶] It is Respondents’ position that only 4 to 5 days will be
needed in order to conduct the arbitration hearing. We met and conferred with
Claimant’s counsel and they prefer all 10 days. Please let us know next steps in resolving
this dispute.”
All further statutory references are to the Code of Civil Procedure.
Page 5 DISCUSSION
I.
STANDARD OF REVIEW
“The party seeking to vacate an arbitration award bears the burden of
establishing that one of the six grounds listed in section 1286.2 applies and that the party
was prejudiced by the arbitrator’s error.” (Royal Alliance Associates, Inc. v. Liebhaber
(2016) 2 Cal.App.5th 1092, 1106.) We review the trial court’s order on the petition to
vacate the arbitration award de novo, and we review the court’s determinations of
disputed factual issues for substantial evidence. (Ibid.)
“Where a party files a petition to confirm an arbitration award pursuant to
section 1285 et seq., ‘the court shall confirm the award as made’ unless it ‘vacates the
award or dismisses the proceeding.’ [Citation.] To the extent the trial court makes
findings of fact in this decision, ‘we affirm the findings if they are supported by
substantial evidence,’ but if ‘the trial court resolved questions of law on undisputed facts,
we review the trial court’s rulings de novo.’” (Rivera v. Shivers (2020) Cal.App.5th 82, 89.)
To be clear: To say our review on this appeal is de novo does not mean we
may reconsider the arbitrator’s award, much less the evidence that was or was not before
the arbitrator. “‘The merits of the controversy between the parties are not subject to
judicial review.’ [Citations.] More specifically, courts will not review the validity of the
arbitrator’s reasoning. [Citations.] Further, a court may not review the sufficiency of the
evidence supporting an arbitrator’s award. [Citations.] [¶] Thus, it is the general rule
that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact
or law.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) Our de novo review is of
Page 6 the trial court’s determination that none of the statutory grounds for vacating the
arbitration award applied.

II.
ANALYSIS
“[T]he court shall vacate the [arbitration] award if the court determines . . . :
[¶] . . . [¶] The rights of the party were substantially prejudiced by the refusal of the
arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the
refusal of the arbitrators to hear evidence material to the controversy or by other conduct
of the arbitrators contrary to the provisions of this title.” (§ 1286.2, subd. (a)(5).) Wyer
argued in his petition to vacate he was substantially prejudiced by (1) the arbitrator’s
refusal to allow him to conduct necessary discovery, (2) the arbitrator’s reduction of the
number of hearing days from 10 to five, and (3) the arbitrator’s failure to determine
which arbitration agreement applied.
A. Discovery
Wyer argues the arbitrator substantially prejudiced him by limiting the
number of depositions he could take prior to the arbitration hearing. The arbitrator
initially ordered that each party could take five depositions. The arbitrator found there
was not good cause for Wyer’s later request—made less than two months before the
arbitration hearing date—for leave to take as many as 10 additional depositions. The
Wyer sought to augment the record on appeal with many volumes of documents
including, inter alia, transcripts of the arbitration hearing, deposition transcripts, admitted
and non-admitted exhibits, and discovery. We denied the motion to augment because
none of those documents were before the trial court. Accordingly, we have not
considered Wyer’s citations in his appellate brief to the documents attached to the motion
to augment. We also have not considered the documents attached to his appellate briefs
that were not before the trial court. (Cal. Rules of Court, rule 8.204(d) [“A party filing a
brief may attach copies of exhibits or other materials in the appellate record or copies of
relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar
citable materials that are not readily accessible. These attachments must not exceed a
combined total of 10 pages”].)
Page 7 arbitrator did, however, permit Wyer to exceed the five deposition limit if more than one
person from Tesla was required to address the topics set forth in Wyer’s PMK notice of
deposition.
The parties’ arbitration provision here does not authorize full discovery
rights. (See § 1283.1, subd. (b); Aixtron, Inc. v. Veeco Instruments Inc. (2020) Cal.App.5th 360, 396–397.) The arbitration provision provides the JAMS rules apply.
Those rules provide: “Each Party may take at least one deposition of an opposing Party
or an individual under the control of the opposing Party. The Parties shall attempt to
agree on the number, time, location, and duration of the deposition(s). Absent agreement,
the Arbitrator shall determine these issues, including whether to grant a request for
additional depositions, based upon the reasonable need for the requested information, the
availability of other discovery and the burdensomeness of the request on the opposing
Parties and the witness.”
The arbitration provision also gives the arbitrator “authority to compel
adequate discovery.” “‘Adequate discovery is indispensable for the vindication of
statutory claims.’ [Citation.] ‘“[A]dequate” discovery does not mean unfettered
discovery . . . .’” (Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713,
727.)
An arbitrator has great latitude and discretion when deciding
discovery-related matters. (§ 1283.05; Evans v. Centerstone Development Co. (2005)
134 Cal.App.4th 151, 164.) A claimant like Wyer, who is pursuing relief under FEHA, is
“entitled to discovery sufficient to adequately arbitrate their statutory claim, including
access to essential documents and witnesses, as determined by the arbitrator(s) and
subject to limited judicial review pursuant to Code of Civil Procedure section 1286.2.”
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, (Armendariz).) “We recognize, of course, that a limitation on discovery is one important
component of the ‘simplicity, informality, and expedition of arbitration.’ [Citation.] The
Page 8 arbitrator and reviewing court must balance this desirable simplicity with the
requirements of the FEHA in determining the appropriate discovery, absent more specific
statutory or contractual provisions.” (Id. at p. 106, fn. 11.)
Wyer sought leave to take the depositions of the following: (1) Mahadevan
Virudhagiri, who allegedly made the decision to terminate Wyer’s employment; (2) the
Tesla PMK on four topics; (3) Palaneeswar Chittoor, who Wyer claimed replaced him
after Wyer’s employment was terminated; (4) Alex Poniz; (5) Dayana Hijaz; (6) Maira
Malik; and (7) Marc Artigas-Sanchez. The latter four witnesses—Poniz, Hijaz, Malik,
and Artigas-Sanchez—worked with Wyer on his team at Tesla. Wyer told the arbitrator
he believed each of these witnesses would “recall personal accounts of [Wyer’s]
performance and [the witness’s own] performance ranking compared to [Wyer] are
highly relevant, considering [Wyer’s] termination was based on [Wyer] ranking lower
than [the] witness on Defendant Rollins’s ‘Stack and Rank List’—which has only been
produced as a scratch-excel-table that was never finalized.”
In addition to himself, Wyer called the following individuals to testify at
the arbitration hearing: Virudhagiri, Travis Wilson (Tesla senior product manager),
defendant Schafer, defendant Rollins, Allison Arebalo (Tesla senior manager of
general/administrative and human resources), and Hijaz. Wyer also called expert
witnesses Dr. Pauline Sacks (his treating psychiatrist), Dr. Jacqueline Nolan (a forensic
psychologist), and Dr. Roman Garagulagian (an economic expert). Wyer and Tesla
The topics noticed for the Tesla PMK were (1) the company’s 2018 reduction in force,
(2) the company’s 2019 reduction in force, (3) Tesla’s policies and procedures regarding
the 2018 and 2019 reductions in force and how those policies and procedures were
applied to Wyer, and (4) Tesla’s “[p]olicies and procedures regarding addressing
employee complaints of workplace injuries, including referring employees to medical
care through Tesla’s workers’ compensation medical provider network, accommodating
employees with work related stress or other work-related injuries/medical conditions, and
engaging the interactive process to address employees with work-related injuries/medical
conditions, and the application of those policies and procedures to Mr. Wyer.”
Page 9 submitted a joint list of stipulated facts regarding Chittoor’s date of birth, starting salary,
and changes in compensation.
In his petition to vacate the arbitrator’s award, Wyer did not identify any
particular depositions he was prevented from taking. In his appellate briefs, Wyer
contends the arbitrator acted prejudicially by preventing him from taking depositions of
Chittoor, Dr. Nathan Ford, and Dr. Lorraine Sunday. But he also related what Dr. Ford
said in his deposition conducted by Tesla; thus, it appears Wyer did have an opportunity
to question Dr. Ford in discovery during one of Tesla’s five depositions. Although Wyer
says the arbitrator prevented him from taking necessary depositions, he never explains
what the precluded deposition testimony would have shown, what it might have led to, or
how the absence of such testimony prejudiced his ability to present his claims. We
conclude Wyer failed to show he was substantially prejudiced by the arbitrator’s limit on
the number of depositions he was permitted to take.
B. The Arbitration Hearing
Wyer also argues the arbitrator substantially prejudiced him by reducing the
number of hearing days from 10 to five. The JAMS rules grant the arbitrator significant
discretion in setting the hearing: “The Arbitrator, after consulting with the Parties that
have appeared, shall determine the date, time and location of the Hearing.” An
“arbitrator has broad discretion in conducting the hearing and ruling on admission of
evidence. [Citations.] And he is not required to follow the rules of evidence and
procedure.” (Evans v. Cornerstone Development Co., supra, 134 Cal.App.4th at p. 164.)
Wyer contends the shortened length of the hearing prevented him from
calling as witnesses the individuals he was not able to depose. In his motion to vacate the
arbitrator’s award, Wyer did not identify any specific witnesses he was unable to call in
support of his claims due to the limit on the number of hearing days. In his appellate
briefs, Wyer identified four individuals he wanted to call to testify (Jezabel Serrano,
Ramya Makam, Ryan Flores, and Alex Poniz). He does not, however, explain what the
Page 10 substance of their testimony would have been, or how his claimed inability to present
their testimony substantially prejudiced him. (Only one of these individuals—Poniz—
appears on the list of depositions Wyer’s counsel sought leave to take before the hearing.)
Wyer acknowledges these four individuals no longer work for Tesla or are “‘missing.’”
He does not indicate how having more days of arbitration hearing would have made a
difference if the witnesses he intended to call could not be located. Nor does he offer
evidence Tesla prevented him from learning where those witnesses were. Wyer fails to
identify any witnesses he had located and who could be compelled to testify that he was
unable to call, or any documentary evidence he could not present, because of the reduced
hearing time. We conclude Wyer failed to establish he was substantially prejudiced by
the arbitrator’s limit on the number of days (or hours) allotted for the hearing.
C. Arbitration Agreement
In his petition to vacate, Wyer argued the underlying arbitration agreement
was not valid and enforceable and, in any event, it was “ambiguous which arbitration
agreement controlled the Arbitration.” Neither argument has merit.
In ordering the matter to arbitration, the trial court found the governing
arbitration provision was set forth in the Agreement between Wyer and Tesla and that it
was valid and enforceable. (§§ 1281, 1281.2.) As the arbitration proceeding progressed,
Wyer refused to stipulate that the arbitration provision in the Agreement governed his
claims because he maintained both employment contracts (the SolarCity employment
contract and the later Tesla Agreement) were contracts of adhesion. In the final
arbitration award, the arbitrator reiterated that the arbitration clause in the Agreement
governed the parties’ dispute.
Wyer argues on appeal the arbitration provision in the Agreement was
unconscionable. Although Wyer did not raise this argument in his petition to vacate the
arbitration award, he did raise it in his opposition to Tesla’s petition to compel
Page 11
arbitration, and the trial court ruled on it. In sending the matter to arbitration, the court
found the Agreement may have been procedurally unconscionable because Wyer was
required to sign it to keep his job after Tesla acquired Wyer’s employer, SolarCity. But it
found any arguable procedural unconscionability was “limited” because the “Employee
Transfer Agreement is four pages long. The terms of [the] arbitration provision are set
forth clearly in four separate paragraphs. The font size and typeface of the arbitration
provision is the same as the remainder of the Employee Transfer Agreement. . . . Further,
[Wyer] appears to have had approximately a week to consider the paperwork.” We agree
with the trial court that any arguable procedural unconscionability in the Agreement was
limited.
But procedural unconscionability alone is not sufficient to render an
arbitration provision unenforceable. The party challenging an arbitration provision must
show it is both procedurally and substantively unconscionable. (Pinnacle Museum Tower
Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247.)
To avoid being substantively unconscionable, an arbitration provision in an
employment contract must (1) provide for neutral arbitrators, (2) provide for more than
minimal discovery, (3) require a written award, (4) provide for all of the types of relief
that would be available in court, and (5) not require employees to pay either unreasonable
When a trial court’s determination of arbitrability presents a pure question of law, our
review is de novo. (Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th
512, 517–518.) When it is based on a resolution of disputed facts, we review for
substantial evidence. (Id. at p. 518.) Assuming the unconscionability issue is properly
before us on an appeal from the judgment confirming the arbitration award, our
conclusion would be the same under either standard of review.
Wyer’s opposition to Tesla’s motion to compel arbitration was filed late, and the trial
court exercised its discretion to reject it. (Cal. Rules of Court, rule 3.1300(d); Jack v.
Ring LLC (2023) 91 Cal.App.5th 1186, 1210.) Therefore, the argument about the
Agreement’s unconscionability was not properly before the court. The court nevertheless
analyzed the alleged unconscionability of the Agreement and found that argument would
not change its ruling that Wyer’s claims were subject to arbitration under the Agreement.
Page 12 costs or any arbitrators’ fees or expenses. (Armendariz, supra, 24 Cal.4th at p. 102.) The
arbitration provision in the Agreement between Tesla and Wyer meets these standards.
Finally, we reject Wyer’s argument that there is some ambiguity or
confusion as to which arbitration provision applied to his claims against Tesla and its
employees. The Agreement between Tesla and Wyer—which Wyer signed—was
attached to the petition to compel arbitration as the controlling contract between the
parties. The trial court based its order compelling arbitration on the arbitration provision
in that Agreement. It is true Wyer was a party to a prior employment agreement with
SolarCity that also contained an arbitration provision. But if there were any genuine
confusion or ambiguity about which provision applied to Wyer’s claims against Tesla, it
would be resolved by the plain language of the later Agreement, which provides, in
relevant part: “This employee transfer agreement constitutes the complete, final and
exclusive embodiment of the entire agreement between you and Tesla with respect to the
terms and conditions of your employment, and it supersedes any other agreements or
promises made to you by anyone, whether oral or written.”

In sum, we conclude the Agreement contains the applicable arbitration
provision, there was no ambiguity as to which arbitration provision governed Wyer’s
claims, and the arbitration provision was neither invalid nor unenforceable.
III.
NEW ARGUMENTS
Several arguments raised by Wyer in his appellate briefs were not raised in
his petition to vacate the arbitration award, and they are not properly before this court.
“[A] party’s brief cannot make arguments that rely on facts either outside the record or
improperly included within it; statements in the briefs based on such matter are
In any event, Wyer does not argue there is any difference between the terms of the two
arbitration provisions such that application of the employment agreement with SolarCity
to his dispute with Tesla would have affected the outcome of this case.
Page 13 disregarded by the appellate court.” (Glassman v. Safeco Ins. Co. of America (2023) Cal.App.5th 1281, 1310.) “‘As a general rule, theories not raised in the trial court cannot
be asserted for the first time on appeal; appealing parties must adhere to the theory (or
theories) on which their cases were tried. This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change of theory on
appeal . . . .’ [Citation.] ‘New theories of defense, just like new theories of liability, may
not be asserted for the first time on appeal.’ [Citation.] ‘“Appellate courts are loath to
reverse a judgment on grounds that the opposing party did not have an opportunity to
argue and the trial court did not have an opportunity to consider. . . . Bait and switch on
appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a
judicial system too burdened to retry cases on theories that could have been raised
earlier.”’” (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982,
997.)
We decline to consider the arguments Wyer asserted for the first time on
appeal.

These arguments include, e.g.: (1) JAMS and Tesla have a financial relationship by
which Tesla pays to obtain good results, (2) Tesla’s attorneys suppressed evidence from
the arbitrator, (3) Tesla’s attorney’s fraudulently manipulated evidence, (4) Tesla’s
witnesses were not credible, (5) Wyer’s forensic psychologist expert witness prepared a
rebuttal report to the report prepared by Tesla’s psychologist expert, but the rebuttal
report was not included on the joint exhibit list, (6) the trial court did not see the evidence
that was before the arbitrator, and (7) the arbitrator was prejudiced in favor of Tesla and
against Wyer.
Page 14 DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
GOODING, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
DELANEY, J.
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