Gastelum v. Remax Int'l, Inc., B263213

• Decision Date: 11 February 2016
• Docket Number: B263213
• Citation: 244 Cal.App.4th 1016,198 Cal.Rptr.3d 234
• Court: California Court of Appeals Court of Appeals
• Parties: Amparo GASTELUM, Plaintiff and Respondent, v. REMAX INTERNATIONAL, INC. et al., Defendants and Appellants.

244 Cal.App.4th 1016

198 Cal.Rptr.3d 234

Amparo GASTELUM, Plaintiff and Respondent,

v.REMAX INTERNATIONAL, INC. et al., Defendants and Appellants.

B263213

Court of Appeal, Second District, Division 5, California.

Filed February 11, 2016

Lytton, Williams, Messina & Hankin and John A. Messina, Jr. for Defendants and Appellants.

Reisner & King, Adam J. Reisner and Alisa Khousadian ; Benedon & Serlin, Douglas G. Benedon and Judith E. Posner for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendants, Remax International Inc. and Jose Garcia–Yanez, appeal from an order lifting a litigation stay. Plaintiff, Amparo Gastelum, filed a complaint against defendants regarding her employment. Defendants moved to compel arbitration. The trial court granted the motion to compel arbitration of Remax International, Inc. and stayed the litigation in the judicial forum pursuant to Code of Civil Procedure section 1281.4.¹ Mr. Garcia–Yanez's motion to compel arbitration was denied.

Plaintiff initiated the arbitration proceeding. Plaintiff requested Remax International, Inc. pay the arbitration filing fee pursuant to Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113, 99 Cal.Rptr.2d 745, 6 P.3d 669 (Armendariz ). (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 400, 183 Cal.Rptr.3d 17.) Remax International, Inc., through its counsel, refused to pay the arbitration filing fee. The arbitration provider dismissed the arbitral proceeding after no arbitration costs were paid.

Plaintiff then moved that the trial court lift its prior order staying the litigation. Defendants filed no contemporary motion or petition seeking an order compelling resumption of the arbitration proceeding. The trial court granted plaintiff's motion and lifted the litigation stay. Defendants then appealed the order lifting the litigation stay. We hold defendants are appealing from a nonappealable order. Thus, the appeal must be dismissed.

II. BACKGROUND

A. Plaintiff's Complaint

On July 17, 2013, plaintiff filed her complaint against defendants. Plaintiff alleges the following. Remax International, Inc. is a California corporation.

Plaintiff was a former employee of Remax International, Inc. and supervised by Mr. Garcia–Yanez. Mr. Garcia–Yanez was a broker for Remax International, Incorporated. Plaintiff alleges 13 causes of action. Under the Fair Employment and Housing Act, plaintiff alleges: sex and gender harassment; sex and gender discrimination; and sex and gender retaliation. Plaintiff also alleges causes of action for: violation of the Unruh Civil Rights Act (Civ.Code, § 51 et seq. ); intentional and negligent interference with prospective economic relations; contract breach; implied covenant breach; violation of Business and Professions Code section 17200 ; defamation; intentional emotional distress infliction; and retaliation and wrongful termination.

B. Defendants' Motion to Compel Arbitration and Trial Court's Order Granting Motion

On December 6, 2013, defendants moved to compel arbitration. Defendants relied on an arbitration clause in an agreement entitled "INDEPENDENT CONTRACTOR AGREEMENT" between plaintiff and Remax International, Incorporated. The arbitration clause at subparagraph 9.B provides in part: "Contractor [plaintiff] hereby agrees to cooperate with Broker [Remax] by supporting and fully participating in all efforts to resolve disputes, complaints and other problems (hereafter collectively called ‘Dispute(s)’ ) that arise: (i) out of this Agreement; (ii) out of Contractor's conduct, activities or services as a real estate licensee; (iii) out of any transaction in which Contractor is involved, or (iv) out of Contractor's relationship with the RE/MAX Network or any RE/MAX affiliate.... Contractor agrees to cooperate in the resolution of such Disputes through mediation, and if not successfully resolved, then through binding arbitration in accordance with the provisions of Subparagraph 9.C. below." Subparagraph 9.C provides: "Disputes shall be submitted to a mediation and arbitration system mutually acceptable to the parties to the Dispute. If the parties cannot agree on a mediation and arbitration system, then the Dispute shall be submitted to the American Arbitration Association ... for mediation and, if unsuccessful, for binding arbitration, in accordance with [the American Arbitration Association's] Commercial Mediation Rules or Commercial Arbitration Rules, as applicable." In their motion to compel arbitration, the following appears, " ‘Defendants recognize that the Arbitration Agreements are employer-promulgated and therefore do, in fact, intend to pay the costs of arbitration.’ "

On September 24, 2014, defendants' motion to compel arbitration was granted in part. The trial court found Remax International, Inc. and plaintiff had agreed to arbitrate the claims raised in her complaint. However, the trial court denied the motion to compel arbitration as to plaintiff's claims against Mr. Garcia–Yanez. The trial court found Mr. Garcia–Yanez was not a party to the arbitration agreement. Mr. Garcia–Yanez never appealed the September 24, 2014 denial of his motion to compel arbitration. The trial court stayed litigation pending the arbitration between plaintiff and Remax International, Inc. pursuant to section 1281.4 which provides in part, "If a court of competent jurisdiction ... has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies."

C. Arbitration Procedural History

On December 2, 2014, plaintiff submitted the matter for arbitration before the American Arbitration Association. An American Arbitration Association staffer, Adam Schoneck, sent a notice to the parties on December 17, 2014. Mr. Schoneck stated: the American Arbitration Association could not yet determine whether plaintiff was an employee or an independent contractor; therefore, Mr. Schoneck indicated the matter would proceed under the Commercial Arbitration Rules; and the issue of whether plaintiff was an employee or an independent contractor was preserved for review by the arbitrator after payment of the arbitration fees. Pursuant to the Commercial Arbitration Rules, Mr. Schoneck, on behalf of the American Arbitration Association, assessed a $7,000 filing fee because plaintiff's alleged damages are between $1 and $10 million. Plaintiff had already paid $200. Mr. Schoneck indicated that if the remaining $6,800 filing fee was not paid, the American Arbitration Association would administratively close the arbitration proceeding.

Plaintiff was represented by Justin Silverman. On December 17, 2014, Mr. Silverman sent an e-mail to counsel for Remax International, Inc. requesting it pay the filing fee. Mr. Silverman noted the trial court's September 24, 2014 order partially granting the motion to compel arbitration expressly relied on Armendariz which held in part, "[A] mandatory employment arbitration agreement that contains within its scope the arbitration of [Fair Employment and Housing Act] claims impliedly obliges the employer to pay all types of costs that are unique to arbitration." (Armendariz, supra, 24 Cal.4th at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669 ; see Cruise v. Kroger Co., supra, 233 Cal.App.4th at p. 400, 183 Cal.Rptr.3d 17.) Mr. Silverman informed defense counsel that Remax International, Inc. was required to pay the arbitration filing fee here. Remax International, Inc. did not pay the filing fee. The American Arbitration Association eventually closed the arbitration on January 15, 2015. Mr. Schoneck explained the arbitral proceedings were terminated because the arbitration fees remained unpaid.

D. Plaintiff's Motion to Lift Stay on Litigation and Trial Court's Order Granting Motion

On February 3, 2015, plaintiff moved to lift the stay on litigation. Plaintiff argued defendants' conduct by failing to pay arbitration filing fees terminated the arbitration proceeding. On March 3, 2015, the trial court granted plaintiff's motion and ordered the litigation stay lifted. This appeal by defendants followed.

III. DISCUSSION

The right to appeal is statutory. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5, 118 Cal.Rptr.3d 571, 243 P.3d 575 ; Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 665, 54 Cal.Rptr.3d 752, 151 P.3d 1166 ; Wells Fargo Bank, N.A. v. The Best Service Co., Inc. (2014) 232 Cal.App.4th 650, 652, 181 Cal.Rptr.3d 597 (Wells Fargo ).) The general list of appealable civil judgments and orders is codified in section 904.1.² (See Walton v. Mueller (2009) 180 Cal.App.4th 161, 172, fn. 9, 102 Cal.Rptr.3d 605 ; Nimmagadda v. Krishnamurthy (1992) 3 Cal.App.4th 1505, 1507, 5 Cal.Rptr.2d 351.) Nothing in section 904.1 expressly identifies an order setting aside a litigation stay as appealable. And there is a general prohibition against nonfinal interlocutory orders in section 904.1, subdivision (a)(1) which applies in the arbitration context. (See Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, 634, 181 Cal.Rptr.3d 622 ; Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 442, 54 Cal.Rptr.3d 232.) Defendants rely upon section 1294, subdivision (a) which defines appealable orders relating to arbitration and provides in part: "An aggrieved party may appeal from: [¶] (a) An order dismissing or denying a petition to compel arbitration." Defendants assert the order lifting the stay of litigation was the functional equivalent of an order dismissing or denying a petition to compel arbitration.

Defendants rely upon Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 96–100, 284 Cal.Rptr. 255 (Henry ) to...