Germaine Judge v. Nijjar Realty, Inc.

Decision Date17 December 2014
Docket NumberB248533
Citation232 Cal.App.4th 619,181 Cal.Rptr.3d 622
CourtCalifornia Court of Appeals Court of Appeals
PartiesGermaine JUDGE, Plaintiff and Appellant, v. NIJJAR REALTY, INC., et al., Defendants and Respondents.

OPINION TEXT STARTS HERE

See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 142.

APPEAL from an order of the Superior Court of Los Angeles County, Ruth Ann Kwan, Judge. Appeal dismissed. (No. BC460592)

The Dion–Kindem Law Firm, Peter R. Dion–Kindem, P.C., Peter R. Dion–Kindem, Woodland Hills; The Blanchard Law Group, APC and Lonnie C. Blanchard, III, Los Angeles, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Christopher S. Andre and Ronald W. Novotny, Cerritos, for Defendants and Respondents.

SEGAL, J.*

INTRODUCTION

Plaintiff Germaine Judge appeals from an order vacating an interim arbitration award. Although an order vacating a final arbitration award is appealable under Code of Civil Procedure 1 section 1294, subdivision (c), the order from which Judge appeals vacated a “clause construction award” that did not resolve the entire arbitration. Instead, the arbitrator's award determined only, as a threshold matter, that Judge's class and representative claims were subject to arbitration. The clause construction award did not rule on the merits of those claims. We conclude that, because the arbitrator has not ruled on any of the substantive issues in the arbitration, the order from which Judge appeals did not vacate a final arbitration award and is not appealable. We therefore dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Nijjar Realty, Inc., doing business as PAMA Management Company, (Nijjar Realty) is in the business of real estate property management. Mike Nijjar is the owner and a president of Nijjar Realty. Swarnjit S. Nijjar and Daljit Kler are also presidents of Nijjar Realty. On October 18, 2010 Nijjar Realty hired Judge as a resident property manager. Judge's employment with Nijjar Realty continued until April 22, 2011, when Nijjar Realty terminated her employment.

A. Judge Files This Action and a Related Class Action

On May 6, 2011 Judge filed this action (case No. BC460592, the “individual/PAGA action”). Her first amended complaint alleged various employment-related and Labor Code causes of action, including claims for unpaid compensation, meal and rest period premiums, waiting time penalties, and wrongful termination. Under the Private Attorney General Act (PAGA; Labor Code § 2698 et. seq.) Judge alleged similar and related causes of action on behalf of herself and other aggrieved employees. On February 14, 2012 Judge filed a class action (case No. BC478836, the “class action”) against three defendants, Nijjar Realty, Mike Nijjar, and Daljit Kler (the Nijjar defendants), alleging six similar employment and Labor Code claims on behalf of herself and the class members.2

On April 9, 2012 the trial court determined that the individual/PAGA action and the class action were related cases within the meaning of Los Angeles Superior Court former rule 7.3(f) (now rule 3.3(f)) and designated the individual/PAGA action as the lead case. The court denied Judge's subsequent ex parte application to consolidate the two cases.3 The court never consolidated the two actions.

B. The Trial Court Grants the Nijjar Defendants' Petitions To Compel Arbitration of Judge's Individual Claims Only and Stays Both Cases

In April 2012 the Nijjar defendants filed a petition in the individual/PAGA action to compel arbitration of Judge's claims and staying the action pending completion of arbitration. The petition was based on an arbitration agreement that Judge had signed while she was an employee of Nijjar Realty. The arbitration agreement provides, in relevant part, “By accepting employment with Atlas Resources/Client,4 the undersigned agrees to submit any and all previously unasserted claims, disputes, lawsuits or controversies arising out of or relating to his or her application or candidacy for employment, his or her employment, or the cessation of his or her employment to binding arbitration before a neutral and unbiased arbitrator.” The arbitration agreement contained multiple references to the American Arbitration Association (AAA), indicating that arbitration would be before the AAA. Although the arbitration agreement did not mention the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq.) or the California Arbitration Act (CAA) (§ 1280 et seq.), the Nijjar defendants' maintained that the arbitration agreement was governed by the FAA because Nijjar Realty made purchases from states other than California and thus was engaged in interstate commerce within the meaning of the FAA.

The Nijjar defendants also filed a petition to compel arbitration of and to stay the class action. Again relying on the FAA, they asked the trial court “to compel the arbitration [of] Plaintiff's claims against them on an individual and not a class-wide basis” and to stay the action “pending the completion of arbitral proceedings.” Citing AT & T Mobility LLC v. Concepcion (2011) 563 U.S. ––––, 131 S.Ct. 1740, 179 L.Ed.2d 742 and Stolt–Nielsen S.A. v. AnimalFeeds Int'l Corp. (2010) 559 U.S. 662, 130 S.Ct. 1758, 176 L.Ed.2d 605 (Stolt–Nielsen ), the Nijjar defendants asked that “arbitration be ordered as an individual as opposed to a collective basis....” They argued that the arbitration agreement “contain[s] no basis at all for authorizing class arbitration proceedings, thereby requiring that Plaintiff be compelled to arbitrate her claims against Defendants individually and not as part of a class action.”

Judge opposed both petitions to compel arbitration. In both cases Judge argued, among other things, that the FAA did not govern the arbitration agreement. In the class action Judge argued that if the court were inclined to grant the petition the court “must send all of the claims asserted by Plaintiff to arbitration, including the PAGA claims and the class action claims.”

On September 11, 2012 the trial court held a hearing on the Nijjar defendants' petitions to compel arbitration. At that hearing the following exchange occurred between counsel and the court:

[Counsel for Judge]: Your Honor, with respect to the PAGA action and also the class action, there's no arbitration or collective action or representative action proscription in the arbitration agreement. It doesn't say you can only file an individual action, you can't file a class action, you can't file a representative action. And the arbitration agreement as you noted in your order is very broad, includes all claims of any nature. There are many cases that hold that the issue is to the extent that the claims to be arbitrated when there's been no actual waiver of class action. It's up to the arbitrator. That's exactly what the [American Arbitration Association (AAA) ] arbitration rules say, that the arbitrator decides the scope of the arbitrable claims. And that's what the arbitrator should decide. If they're saying that the arbitration should be conducted under AAA rules and the AAA rules say, we're going to decide—the AAA is going to decide what claims —

“The Court: Then you can make that argument to the arbitrator. I have no right to force them, force you into a class arbitration when the agreement doesn't—is silent on that issue, that's what I'm saying.

[Counsel for Judge]: Well, when it's silent?

“The Court: If you want to bring up that issue with the arbitrator, I don't think you're foreclosed from doing so.

[Counsel for Judge]: Okay. As long as that's clear, your Honor, then that's fine.”

[Counsel for Nijjar defendants]: But for the record, it's our position that he's waived that. That he can't do that with the arbitrator. That the AAA rules absolutely do not provide for the arbitrator to determine—

“The Court: Well, then you can talk to the arbitrator regarding that issue.

[Counsel for Judge]: Yes, the AAA rules—

“The Court: What I'm saying is that I can't force your client to do a class arbitration because that was not necessarily provided for, okay?

[Counsel for Judge]: Right. But the fact that it wasn't provided for does not mean given the breadth of the agreement which does not preclude it, does not allow it under arbitration the AAA rules. And if you're saying that the AAA triple rules apply in whatever the arbitrator decides it to be.

“The Court: You're not precluded from bringing whatever argument you wish to bring before the arbitrator if the AAA rules provides—the arbitrator allows the arbitration agreement. And under the AAA rules would allow you to bring up those arguments, okay?

[Counsel for Judge]: Thank you.”

After additional argument, the trial court granted the Nijjar defendants' petition to compel arbitration and stay proceedings in the individual/PAGA action. The trial court concluded that the FAA governed the arbitration agreement and that Judge's “employment-related claims” and her individual PAGA claims [were] covered by the Agreement.” The court also granted the Nijjar defendants' petition in the class action to compel arbitration and stay proceedings “only as to Plaintiff's individual claims,” again concluding that the FAA applied.5 Citing Stolt–Nielsen,supra, 559 U.S. 662, 130 S.Ct. 1758, the trial court concluded that, because “the Agreement is silent on the issue of class arbitration, arbitration cannot be compelled on a class-wide basis. Therefore, Defendants' motion to compel arbitration is granted as to Plaintiff's individual claims only.” Both cases proceeded to arbitration before the AAA, pursuant to the terms of the arbitration agreement.

C. The Arbitrator Issues a Scheduling Order and a Clause Construction Award

On December 7, 2012 the arbitrator issued a scheduling order. The arbitrator noted that the trial court had “found the arbitration agreement to be enforceable pursuant to the [FAA],” and she stated that, [e]xcept as provided to the contrary in the arbitration agreement, the proceeding...

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2 books & journal articles
  • Annual Update of Alternative Dispute Resolution Cases and Legislation
    • United States
    • California Lawyers Association Business Law Section Annual Review (CLA) No. 2023-1, 2023
    • Invalid date
    ...153, 174 (2010); Mave Enterprises, Inc. v. Travelers Indem. Co., 219 Cal. App. 4th 1408, 1429 (2013); Judge v. Niijar Realty, Inc., 232 Cal. App. 4th 619, 631 (2014); Espinoza v. Super. Ct., 83 Cal. App. 5th 761, 786-87 (2022).35. Before deciding whether the FAA or CAA should apply, the dra......
  • Annual Update of Alternative Dispute Resolution Cases
    • United States
    • California Lawyers Association Business Law Section Annual Review (CLA) No. 2018, 2018
    • Invalid date
    ...Connection, Inc. v. DIRECTV, Inc., 44 Cal. 4th 1334, 1351 (2008).16. See Cronus, 35 Cal. 4th at 394; Judge v. Niijar Realty, Inc., 232 Cal. App. 4th 619, 632 (2014).17. See Valencia v. Smyth, 185 Cal. App. 4th 153, 174 (2010).18. 226 Cal. App. 4th 438, 447 (2014).19. Cal. Bus. & Prof. Code ......

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