Damon Tulip, App. vs. Service Corp. International, Et Ano., Resps.

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STATE OF WASHIMGTO.
20IMAPR2I 	AH Ih 36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DAMON TULIP,
Appellant,
v.
SERVICE CORPORATION
INTERNATIONAL, SCI FUNERAL AND
CEMETERY PURCHASING
COOPERATIVE, INC., SCI WESTERN
MARKET SUPPORT CENTER, L.P.
a/k/a SCI WESTERN MARKET
SUPPORT CENTER, INC., SCI
WASHINGTON FUNERAL SERVICES,
INC., GREENWOOD MEMORIAL
PARK CEMETERY & FUNERAL
HOME, JANE D. JONES, THOMAS
RYAN,
Respondents.
No. 69306-9-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 21, 2014
Schindler, J. — Damon Tulip filed a petition to compel arbitration of his state law
wage claims after the class action wage claim lawsuits were dismissed and over three
and one-half years after his employment ended. The court dismissed his petition to
compel with prejudice. We affirm.
FACTS
Service Corporation International (SCI) owns funeral homes nationwide. In
September 2004, SCI Washington Funeral Services Inc. hired Damon Tulip to work at

No. 69306-9-1/2
Greenwood Memorial Park Cemetery and Funeral Home in Renton as a Family Service
Counselor and Community Service Counselor. 	Tulip signed a "Principles of
Employment" agreement (Agreement). 	The Agreement states that all disputes relating
to any aspect of Tulip's employment with SCI shall be resolved through binding
arbitration, and any claim must be presented in writing "within one year of the date the
claiming party knew or should have known of the facts giving rise to the claim."
The Agreement states, in pertinent part:
1. 	Matters Subject To Arbitration. 	Employee and the Company agree
that, except for the matters identified in Section 2 below and except as
otherwise provided by law, all disputes relating to any aspect of
Employee's employment with the Company shall be resolved by binding
arbitration. This includes, but is not limited to, any claims against the
Company, its affiliates or their respective officers, directors, employees, or
agents for breach of contract, wrongful discharge, defamation,
misrepresentation, and emotional distress, as well as any disputes
pertaining to the meaning or effect of this Agreement. The arbitration shall
be conducted in accordance with the procedures attached hereto as
Exhibit "A." This agreement to arbitrate shall cover disputes arising both
before and after the execution of this document, except to the extent that
any litigation has already been filed as of the date hereof.
2. 	Exclusions. 	It is expressly agreed and understood that this
Agreement shall not govern the following: 	(1) any claims brought under
federal discrimination laws (including Title VII of the Civil Rights Act) or
any other federal laws administered by the Equal Employment Opportunity
Commission, (2) claims for workers' compensation or unemployment
benefits, or (3) claims brought to enforce any noncompetition or
confidentiality agreement which may exist between the parties.
3. 	Notification/Timeliness Of Claims. Any claim which either party has
against the other, other than a claim based on employment discrimination,
must be presented in writing bv the claiming party to the other within one
year of the date the claiming party knew or should have known of the facts
giving rise to the claim. 	Otherwise, the claim shall be deemed waived and
forever barred even if there is a federal or state statute of limitations which
would have given more time to pursue the claim.. . .
NOTICE TO EMPLOYEE: 	BY SIGNING THIS AGREEMENT, YOU
ARE AGREEING TO HAVE ANY AND ALL DISPUTES BETWEEN YOU
AND YOUR COMPANY (EXCEPT THOSE SPECIFICALLY EXCLUDED
IN SECTION 2 ABOVE AND THOSE OTHERWISE EXCLUDED BY

No. 69306-9-1/3
APPLICABLE LAW, IF ANY) DECIDED BY BINDING ARBITRATION AND
YOU ARE WAIVING YOUR RIGHT TO A JURY OR COURT TRIAL™
Tulip worked at SCI until September 2007.
In December 2007, a former SCI employee on behalf of a national class of SCI
employees, including Tulip, filed a lawsuit in California state court against SCI, Bryant,
et al. v. Service Corp. International, et al.. No. RG 07359593 (Alameda County Super.
Ct.).2 The class action lawsuit alleged wage claims under state law. 	SCI removed the
lawsuit to the United States District Court for the Northern District of California, Bryant,
et al. v. Service Corp. International, et al.. No. 3:08-cv-01190-SI (2008).
On January 15, 2008, James Stickle and several other named plaintiffs acting on
behalf of a national class of SCI employees, sued SCI in federal court in Arizona
alleging violation of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. ch. 8,
Stickle, et al. v. SCI Western Market Support Center LP. et. al.. No. 2:08-cv-00083-
MHM (D. Ariz.).3 The lawsuit alleged SCI did not pay the class members for all hours
worked and did not pay overtime at one and one-half times the hourly wage. The suit
also alleged SCI required pre-approval for overtime pay, deducted meal break hours
from pay, and required employees to do "community work" without compensation.
Stickle sought damages in the amount of plaintiffs' unpaid wages. The court
1(Some emphasis added) (boldface omitted).
2The defendants in Bryant were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,
SCI Western Market Support Center LP aka SCI Western Market Support Center Inc., Jane D. Jones,
Thomas Ryan, Gwen Petteway, and Curtis Briggs.
3The defendants in Stickle were SCI, SCI Western Market Support Center, SCI Eastern Market
Support Center, SCI Houston Market Support Center, SCI Funeral and Cemetery Purchasing
Cooperative Inc., Jane D. Jones, Gwen Petteway, Thomas Ryan, Curtis Briggs, The SCI 401K
Retirement Savings Plan, and Julie Douglas. The plaintiffs also alleged claims under the Employee
Retirement Income Security Act, 29 U.S.C. ch. 18, and the Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. ch. 96.

No. 69306-9-1/4
conditionally certified a class action on the FLSA claim and approximately 1,400 SCI
employees opted into the class action lawsuit.
On December 14, 2009, Tulip filed a "Consent to Become A Party Plaintiff' in the
Stickle lawsuit. 	The Consent to Become A Party Plaintiff states, in pertinent part:
I consent to become a "party plaintiff," named, or a representative
plaintiff in this action, seeking payment of unpaid wages under Federal or
State law, including overtime wages, and related relief against my
employer(s) including any individual(s) who may be considered my
employer(s), on behalf of myself and other former and current employees
of the employer(s). 	I am, or was employed by Alderwoods Group, Inc.
and/or Service Corporation International.
The parties in the Stickle suit engaged in lengthy discovery on class certification.
SCI propounded interrogatories and took approximately 60 depositions. 	In response to
the interrogatories, Tulip states he was not paid for all time worked because SCI
1. 	encourag[ed] or required] hourly employees to participate in
various community activities (church, Lion Club, Rotary
International, Chamber of Commerce, etc.) so as to increase
revenue for defendants but not compensating them on an hourly
basis for such time spent engaging in community work; . ..
2. 	encourag[ed] or required] hourly employees to work by selling pre-
needs policies after hours,. ..
3. 	encourag[ed] or required] hourly employees to take or teach
training mandated by defendants outside of their normal work
hours, ...
4. 	encourag[ed] or required] hourly employees to deduct a full meal
break from their work hours each day, even when such employees
either missed their lunch breaks, or were interrupted during their
lunch breaks,. . .
5. 	require[ed] pre-approv[al] from management for any overtime hours
worked, and refus[ed] to pay hourly employees for overtime hours
worked unless the overtime had been pre-approved by
defendants;. ..
6. 	refus[ed] to allow hourly employees to properly record all overtime
hours worked, . .. pressuring employees to underreport overtime
hours worked .. . ; and
7. 	fail[ed] to include all remuneration (such as bonuses and
commissions) when calculating the regular rate due to hourly
employees for payment for overtime hours worked.

No. 69306-9-1/5
After more than two and one-half years of litigation in the Bryant case, the parties
stipulated to dismiss the claims of the out-of-state class members, including Tulip. 	On
July 22, 2010, the court entered an order of dismissal of the claims of the out-of-state
plaintiffs without prejudice.
On October 5, 2010, Craig Emmick on behalf of a class of Washington
employees, including Tulip, filed a lawsuit against SCI in King County Superior Court,
Emmick. et al. v. Service Corp. International, et al.. No. 10-2-35204-0 SEA.4 The
Emmick lawsuit against SCI alleged state law claims and sought to recover unpaid
wages and unpaid overtime. 	SCI removed the Emmick lawsuit to the United States
District Court for the Western District of Washington, Emmick. et al. v. Service Corp.
International, et al.. No. 2:10-cv-02027-MJP (2010).
On April 25, 2011, the United States District Court for the District of Arizona
granted the motion to decertify the class action in Stickle and entered an order
dismissing "the claims of all opt-in plaintiffs," including Tulip.
On May 2, 2011, SCI filed a motion to dismiss the Emmick lawsuit. 	SCI argued
that the plaintiffs failed to state a claim for relief on a number of grounds including
preemption. While the motion to dismiss was pending, the Emmick plaintiffs voluntarily
dismissed their claims. 	The court entered the order of dismissal on May 17.
Two days later, Tulip sent SCI a "Demand for Arbitration" under the terms ofthe
Agreement of his claims for unpaid wages, overtime, and other compensation. 	SCI did
not respond to the demand for arbitration.
"The defendants in Emmick were SCI, SCI Funeral and Cemetery Purchasing Cooperative Inc.,
SCI Western Market Support Center Inc., SCI Washington Funeral Services Inc., Jane D. Jones, Gwen
Petteway, and Thomas Ryan.

No. 69306-9-1/6
On November 15, 2011, Tulip filed a "Petition to Compel Arbitration" in King
County Superior Court. Tulip sought to arbitrate claims "for unpaid overtime and other
wages and compensation" under state law.5 SCI filed an answer asserting the claims
were time barred and Tulip waived his right to arbitration by participating in the prior
litigation.
SCI filed a motion to dismiss arguing as a matter of law Tulip waived his right to
arbitrate and his claims were barred by the statute of limitations. Tulip filed a motion for
summary judgment arguing he was entitled to arbitration. 	Tulip argued that by
participating in the class action lawsuits, he did not waive the right to arbitrate his state
law wage claims underthe Agreement. 	In opposition, SCI asserted the undisputed
facts established Tulip waived the right to arbitration by participating in the Bryant,
Stickle, and Emmick class action lawsuits. 	In support, SCI submitted his consent to
become a party plaintiff in the Stickle lawsuit, the Stickle complaint and docket, Tulip's
answers to interrogatories in Stickle, and the complaint and docket in Emmick.
The court dismissed the Petition to Compel Arbitration with prejudice. 	Tulip
appeals.
ANALYSIS
Tulip argues the court erred by dismissing his petition to compel arbitration. We
review the decision on a motion to compel arbitration and summary judgment de novo.
5The petition stated that the "relevant statutes and regulations relating to Tulip's claims include"
RCW 49.12.020 (providing that it is unlawful to employ any person "at wages which are not adequate for
their maintenance"), RCW 49.48.010 (regarding authorized deductions and withholdings from pay), RCW
49.52.050 (providing that making false wage records is a misdemeanor), WAC 296-126-021 (regarding
minimum wage calculation for employees receiving commission), WAC 296-126-025 (regarding
deductions from final wages), and WAC 296-126-092 (regarding meal and rest periods).
6

No. 69306-9-1/7
Hartley v. State. 103 Wn .2d 768, 774, 698 P.2d 77 (1985); Zuver v. Airtouch
Commc'ns, Inc., 153 Wn.2d 293, 302, 103 P.3d 753 (2004); CR 56(c). Waiver of the
right to arbitrate is governed by federal law. Kinsev v. Bradley, 53 Wn. App. 167, 169,
765 P.2d 1329 (1989). 	Under federal law, "the ultimate determination of waiver is
reviewed de novo, as a matter of law." Steele v. Lundgren. 85 Wn. App. 845, 850-51,
935P.2d671 (1997).
Waiver of the Right to Arbitrate
Section 2 of the Federal Arbitration Act, 9 U.S.C, is "a congressional declaration
of a liberal federal policy favoring arbitration agreements, notwithstanding any state
substantive or procedural policies to the contrary." Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp.. 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
Accordingly, a party opposing arbitration bears a " 'heavy burden'" to show waiver of
the right to arbitrate. Steele. 85 Wn. App. at 852 (quoting Fisher v. A.G. Becker Paribas
Incorporation, 791 F.2d 691, 694 (9th Cir.1986)).
To establish waiver of the right to arbitration, the party opposing arbitration must
prove (1) knowledge of an existing right to compel arbitration, (2) acts inconsistent with
that right, and (3) prejudice to the party opposing arbitration. 	Kinsev, 53 Wn. App. at
169 (citing Letizia v. Prudential Bache Sec. Inc., 802 F.2d 1185, 1187 (9th Cir.1986)).
" 'The waiver determination necessarily depends upon the facts of the particular case
and is not susceptible to bright line rules.'" Steele, 85 Wn. App. at 853 (quoting Cotton
v. Slone. 4 F.3d 176, 179 (2d Cir.1993)).
Tulip contends SCI did not meet its heavy burden of showing he waived his right
to arbitration. Tulip contends the state law wage claims are different than the federal

No. 69306-9-1/8
law wage claims asserted in Stickle, and his limited participation in the class action
litigation was not inconsistent with his right to arbitration. 	SCI argues that Tulip's
attempt to compel arbitration is an improper attempt to relitigate the same claims and
seek the same relief he sought in the prior unsuccessful class actions. 	SCI argues Tulip
acted inconsistently with the right to arbitrate under the Agreement by participating in
Bryant, Stickle, and Emmick and waiting more than three and one-half years after he
stopped working for SCI in September 2007 to request arbitration.
1. 	Knowledge
There is no dispute that Tulip signed the agreement to arbitrate in September
2004. 	"One is presumed to know and understand the contents of documents one
signs." Kinsev, 53 Wn. App. at 171 (citing O'Neel v. Nat'l Ass'n of Sec. Dealers. Inc.,
667 F.2d 804 (9th Cir. 1982)).6 We conclude Tulip was aware of his right to arbitrate
when he signed the Agreement in September 2004.
2. 	Acts Inconsistent with Arbitration
SCI argues that the undisputed facts establish Tulip acted inconsistently with the
right to arbitrate under the terms of the Agreement by participating in Bryant, Stickle,
and Emmick. Tulip claims he did not act inconsistently with the right to arbitrate his
state law claims because Stickle involved only federal law wage claims brought under
the FLSA, and because his participation in Stickle was limited. Whether a party acts
inconsistently with the right to arbitrate is a fact-specific inquiry. 	Steele, 85 Wn. App. at
853.
6 Tulip argues for the first time in his reply brief that he was never given a copy of his arbitration
agreement. We do not consider an argument made for the first time in a reply brief. Cowiche Canyon
Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (issue raised for the first time in a
reply brief is too late to warrant consideration). Further, Tulip presented no evidence to support this
assertion.
8

No. 69306-9-1/9
SCI contends the record establishes that there is no difference between the
claims Tulip unsuccessfully litigated in Bryant. Stickle, and Emmick, and the claims he
now seeks to arbitrate. 	Tulip claims Washington law is more protective and the FLSA
wage claims asserted in Stickle are legally and factually distinct from the state law wage
claims he seeks to arbitrate.
Tulip's demand for arbitration sought to arbitrate claims "for unpaid overtime and
other wages and compensation." The overtime provisions of the FLSA and the
Washington Minimum Wage Act (MWA), chapter 49.46 RCW, are nearly identical.
Compare RCW 49.46.130(1) (providing that except as otherwise provided, an employer
must pay his employees "one and one-half times the regular rate at which he or she is
employed" for "a work week longer than forty hours") wjth 29 U.S.C. § 207 (providing
that except as otherwise provided, any employer must pay his employees "one and one-
half times the regular rate at which he is employed" for "a workweek longer than forty
hours"). See also Anfinson v. FedEx Ground Package Svs.. Inc., 174 Wn.2d 851, 871,
281 P.3d 289 (2012) (noting MWA is "patterned after the FLSA").7
7The federal cases Tulip relies on are distinguishable. None of these cases involve a plaintiff
attempting to arbitrate state law claims despite already having litigated federal law claims arising out of
the same facts and requesting the same relief. See MicroStrateav. Inc. v. Lauricia, 268 F.3d 244, 250
(4th Cir. 2001) (employer did not waive its right to arbitrate its employee's discrimination claim by litigating
an unrelated trade secrets claim in a previous action); Doctor'sAssocs.. Inc. v. Distajo, 107 F.3d 126,133
(2nd Cir. 1997) (franchisor did not waive arbitration of breach of contract claim by litigating eviction action
where claims did not involve the same "core facts"); Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324,
327 (5th Cir. 1999) (participation in prior litigation of nonarbitrable claims did not waive arbitration).
Further, our cases have repeatedly stated that a court's waiverdetermination is based on the facts and
circumstances of individual cases, not on bright line rules. See Steele, 85 Wn. App. at 853; Hill v. Garda
CL Nw.. Inc.. 169 Wn. App. 685, 691, 281 P.3d 334 (2012) reversed on other grounds by 179 Wn.2d 47,
308 P.3d 635 (2013). Tulip also cites two federal cases for the proposition that litigating a class action is
not inconsistent with later arbitration of state law claims. Beauperthuv v. 24 Hour Fitness USA. Inc., No.
06-715 SC, 2011 WL 6014438, at *5 (N.D. Cal. Dec. 2. 2011V Manskerv. Farmers Ins. Co. of Wash., No.
C10-0511JLR, 2010 WL 3699847, at *3 (W.D. Wash. Sept. 14, 2010). Neither case addresses waiver of
arbitration.
9

No. 69306-9-1/10
The FLSA and state law wage claims depend on the same facts and seek the
same relief: 	unpaid overtime and other wages. 	Both claims relate to Tulip's
employment with SCI from September 2004 to September 2007. 	Both claims allege
failure to pay overtime wages, regular wages, and wages for missed break and meal
times. 	The complaint in Stickle alleged that SCI violated the FLSA by failing to pay its
employees for all hours worked and did not pay time and one-half for overtime hours.
In the alternative, Tulip argues that even ifthe federal and state law wage claims
are not factually and legally distinct, he did not act inconsistently with his right to
arbitrate by participating in the class actions because his participation was limited. 	SCI
argues the three and one-half-year delay in seeking arbitration and his involvement in
the class actions in federal court demonstrate that Tulip did not intend to arbitrate his
claims.
"Waiver occurs when a party seeking arbitration substantially participates in
litigation to a point inconsistent with an intent to arbitrate and this participation results in
prejudice to the opposing party." 	Morewitz v. W. of England Ship Owners Mut. Prot. &
Indem. Ass'n, 62 F.3d 1356, 1366 (11th Cir.1995). 	"A party substantially invokes the
litigation machinery when ... it files a lawsuit on arbitrable claims." 	Lewallen v. Green
Tree Servicing. LLC, 487 F.3d 1085, 1090 (8th Cir. 2007).
Here, Tulip substantially invoked the litigation machinery. 	The record establishes
Tulip sought to resolve his wage claims in court rather than seek nonjudicial resolution
through arbitration. 	Further, Tulip's consent to be a named plaintiff specifically states he
was "seeking payment of unpaid wages under Federal and State law."
10

No. 69306-9-1/11
Tulip elected to litigate his wage claims, selecting federal court as his first-choice
forum. 	Tulip affirmatively chose to litigate his wage claims by opting in as a plaintiff to
an FLSA class action, stating, "I consent to become a 'party plaintiff,' named, or
representative plaintiff in this action, seeking payment of unpaid wages under Federal or
State law, including overtime wages, and related relief." Tulip remained a party in
Stickle for one and one-half years, engaging in discovery and failing to raise the right to
arbitrate. Tulip first made his demand for arbitration two days after the plaintiffs in
Emmick voluntarily dismissed their wage claims. Tulip's decision to bring claims in
federal court and to resort to arbitration only after dismissal of his claims is inconsistent
with arbitration. 	Parlerv. KFC Corp.. 529 F. Supp. 2d 1009, 1015 (D. Minn. 2008);
Welborn Clinic v. Medouist. Inc., 301 F.3d 634, 637 (7th Cir. 2002) ("[W]e do not want
parties to forum shop, taking a case to the courts and then, if things go poorly there,
abandoning their suit in favor of arbitration."). 	Further, the fact that Tulip did not
demand SCI participate in arbitration until May 2011 provides some evidence that Tulip
elected litigation. 	River House Dev.. Inc. v. Integrus Architecture, PS, 167 Wn. App.
221, 239 n.4, 272 P.3d 289 (2012) ("While the ultimate issue of limitations in arbitration
would have been for the arbitrator, the fact that River House had so far not filed a
demand was some evidence it had elected litigation.").
Parler is analogous. In Parler. a nationwide class of assistant managers at
Kentucky Fried Chicken (KFC) filed FLSA and state law wage claims against their
employer. 	Parler, 529 F. Supp. 2d at 1011. The court conditionally certified a national
class of employees. 	Approximately 1,000 employees opted into the FLSA class.
Parler, 529 F. Supp. 2d at 1011. The plaintiffs then asked the court to decertify the
11

No. 69306-9-1/12
single nationwide class, divide the class into several state-level FLSA classes, and
transfer those claims to federal district court. 	Parler, 529 F. Supp. 2d at 1011. The
court granted the motion to decertify but denied the motion to transfer. 	Parler. 529 F.
Supp. 2d at 1011.
Thereafter, over 300 employees sought to arbitrate their claims against KFC.
Parler, 529 F. Supp. 2d at 1011. 	KFC argued those plaintiffs waived their right to
arbitrate and the court agreed. 	Parler. 529 F. Supp. 2d at 1014. The court concluded
that the plaintiffs "substantially invoked the litigation machinery" by opting into the
national FLSA class and asking the court to transfer the claims to other courts rather
than to an arbitrator. 	Parler, 529 F. Supp. 2d at 1014. 	The court stated the plaintiffs
indicated their first-choice forum was a federal court and "[fjiling a case in federal court
and seeking arbitration only after the litigation goes badly is acting inconsistently with
the right to arbitrate." 	Parler, 529 F. Supp. 2d at 1014-15.
Based on the undisputed facts, we conclude Tulip's election to pursue potential
class actions in federal court is inconsistent with arbitration under the terms of the
Agreement.
3. 	Prejudice
SCI contends that the extent of litigation in federal court and Tulip's delay in
seeking arbitration established prejudiced. Tulip argues SCI did not establish that the
three and one-half-year delay and costs of discovery prejudiced SCI.
To determine whether the party opposing arbitration was prejudiced, the court
examines the extent of the delay, the degree of litigation preceding the motion to
compel arbitration, the resulting expenses, and other surrounding circumstances.
12

No. 69306-9-1/13
Steele. 85 Wn. App. at 858-59. 	Prejudice can be shown if a party does not demand
arbitration during pretrial proceedings and engages in inconsistent acts:
[Wjhen a party fails to demand arbitration during pretrial proceedings, and
in the meantime engages in pretrial activity inconsistent with an intent to
arbitrate, the party opposing a motion to compel arbitration may more
easily show its position has been compromised, i.e., prejudiced.
Kinsev. 53 Wn. App. at 170.
In Steele, this court identified two types of prejudice and held that an
unnecessary 10-month delay in bringing a demand for arbitration, coupled with
aggressive discovery, satisfied the prejudice requirement:
"Prejudice can be substantive, such as when a party loses a motion on the
merits and then attempts, in effect, to relitigate the issue by invoking
arbitration, or it can be found when a party too long postpones his
invocation of his contractual right to arbitration, and thereby causes his
adversary to incur unnecessary delay or expense."
Steele. 85 Wn. App. at 858-598 (quoting Kramer v. Hammond, 943 F.2d 176, 179 (2nd
Cir. 1991)).
Here, Tulip made no demand to arbitrate for over three and one-halfyears after
his employment ended and never asserted his right to arbitration in Bryant, Stickle, or
Emmick. Tulip demanded arbitration under the Agreement only after his claims were
dismissed in Bryant, Stickle, and Emmick. We conclude SCI met its burden to show the
8 (Emphasis omitted.)
13

No. 69306-9-1/14
delay in seeking arbitration prejudiced SCI.9
We affirm dismissal of the petition to compel arbitration.
WE CONCUR:
SjQsArrfQ** 	(cy-
9 In a statement of additional authority, Tulip cites Biernacki v. Service Corp. International, 533
Fed. App'x 741 (9th Cir. 2013). Because Biernacki explicitly relies on California state law, not federal law,
we do not address Biernacki.
14