Germaine Judge v. Superior Court of L. A. Cnty., B267694

• Decision Date: 15 August 2016
• Docket Number: B267694
• Parties: GERMAINE JUDGE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; NIJJAR REALTY, INC., et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

GERMAINE JUDGE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;NIJJAR REALTY, INC., et al., Real Parties in Interest.

B267694

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

August 15, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC460592)

ORIGINAL PROCEEDING in mandate. Ruth Ann Kwan, Judge. Petition granted.

The Dion-Kindem Law Firm, Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. Blanchard III for Petitioner.

No appearance for Respondent.

Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny, Christopher S. Andre and Amber S. Healy for Real Parties in Interest.

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INTRODUCTION

When is an arbitration award not an arbitration award? When it does not "include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy," as required by Code of Civil Procedure section 1283.4.¹ And when it is not an arbitration award, it cannot be vacated. In this original proceeding, we issue a writ of mandate directing the trial court to vacate its order vacating an award that did not qualify as an arbitration award under section 1283.4.

FACTUAL AND PROCEDURAL BACKGROUND

A. Germaine Judge's Two Actions

This litigation arises out of two actions filed by Germaine Judge against Pama Management Company, Nijjar Realty Inc., Mike Nijjar, Swaranjit Nijjar (collectively, the Nijjar defendants), and several other individuals. The first case, filed on May 6, 2011 (Super. Ct. L.A. County, No. BC460592; the individual/PAGA action), alleged various Labor Code violations and other employment-related causes of action, including claims for unpaid compensation, meal and rest period premiums, waiting time penalties, wage statement violations, failures to maintain adequate workplace temperature, unlawful business practices, and wrongful termination. Judge alleged similar causes of action under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) on behalf of "herself and other persons who are or were employed by the alleged violator and against whom one or more of the alleged violations was committed."

The second case, filed on February 14, 2012 (Super. Ct. L.A. County, No. BC478836; the class action), was a class action also against the Nijjar defendants. Judge's class action complaint alleged six similar employment and Labor Code claims onbehalf of herself and the members of the class. (See Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, 623 (Judge I).)

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 County Superior Court former rule 7.3(f) (now rule 3.3(f)). The court did not consolidate the two actions. (Judge I, supra, 232 Cal.App.4th at p. 623.)

B. The Order Compelling Arbitration of and Staying Both Cases

While she was an employee of Nijjar Realty, Judge signed an arbitration agreement. This agreement provided, in relevant part: "By accepting employment with [PAMA Management], 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 specified that arbitration would be with the American Arbitration Association (AAA). (See Judge I, supra, 232 Cal.App.4th at pp. 623-624.)

The Nijjar defendants filed a petition in the individual/PAGA action to compel arbitration of Judge's claims and to stay the action pending completion of arbitration. 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 argued that the FAA governed the arbitration agreement because Nijjar Realty engaged in interstate commerce. In their petition to compel arbitration of the individual/PAGA action, the Nijjar defendants asked the court to order Judge to submit all of her claims to arbitration, without distinguishing between "individual" and other claims, arguing that "all of [Judge's] claims in this action are subject exclusively to resolution through final and binding arbitration as required by a written agreement to arbitrate that must be enforced pursuant to the FAA." (See Judge I, supra, 232 Cal.App.4th at p. 624.)

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.'" The Nijjar defendants asked that "'arbitration be ordered as an individual as opposed to a collective basis,'" and 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 I, supra, 232 Cal.App.4th at p. 624.)

Judge opposed both petitions to compel arbitration, arguing, 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.'" (See Judge I, supra, 232 Cal.App.4th at p. 624.)

On September 11, 2012 the trial court determined that the FAA governed the arbitration agreement, and granted the Nijjar defendants' petition to compel arbitration and to stay proceedings in the individual/PAGA action. In a section of the court's ruling entitled "Covered Claims," the court stated that Judge's "employment-related claims" and her "individual PAGA claims" were covered by the arbitration agreement. The court also granted the Nijjar defendants' petition in the class action to compel arbitration "only as to Plaintiff's individual claims" and to stay proceedings. Citing Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662 (Stolt-Nielsen), the trial court ruled 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. (See Judge I, supra, 232 Cal.App.4th at p. 626.)

C. The Arbitrator's Clause Construction Award

On December 7, 2012 the arbitrator, after noting that the trial court had "found the arbitration agreement to be enforceable pursuant to the [FAA]," ruled as follows: "Except as provided to the contrary in the arbitration agreement, the proceeding will be governed by the FAA, California substantive law, the Employment Dispute Resolution Rules of the [AAA], and the AAA's Supplementary Rules for Class Arbitrations." In a section of her ruling entitled "Clause Construction Award," the arbitrator stated that she would be issuing a "partial final award on the construction of the arbitration clause." On January 21, 2013, after the parties had briefed the issue, the arbitrator issued a lengthy clause construction award, and concluded that the arbitration agreement permitted arbitration of class and PAGA claims. (See Judge I, supra, 232 Cal.App.4th at pp. 626-627.) The arbitrator ruled, however, "[t]his does not mean that this matter will proceed on a class and/or representative basis. At the appropriate time, [Judge] will have an opportunity to seek class certification, which may or may not be granted. . . . Also, at the appropriate time, [the Nijjar defendants] will have an opportunity to argue that the PAGA claims cannot proceed on a representative basis because of manageability or other issues."

D. The Nijjar Defendants' Petition To Vacate the Clause Construction Award in the Individual/PAGA Action

On March 8, 2013 the Nijjar defendants filed a petition in the individual/PAGA action to vacate the clause construction award. The Nijjar defendants argued that the "Arbitrator . . . lacked jurisdiction to issue a 'clause construction award,' and clearly exceeded her power in doing so, because the parties had already submitted [the issue of arbitrability to] the Court to decide and were bound by the Court's ruling." The Nijjar defendants also argued that they "did not agree to arbitrate the issue of whether the parties' agreement provided for class or representative action, either under the AAA's Supplementary Rules for Class Arbitration or otherwise," and that the parties never agreed to arbitrate class claims. Judge opposed the petition to vacate the arbitrator'sclause construction award and asked the court to confirm it. (See Judge I, supra, 232 Cal.App.4th at p. 627.)

On April 2, 2013 the trial court granted the Nijjar defendants' petition to vacate the clause construction award. The court ruled: "The Arbitrator exceeded her powers by deciding the issue of whether the parties agreed to arbitrate class or representative claims. The parties submitted the issue to the Court for determination. Defendants petitioned the Court to compel arbitration of Plaintiff's claims against them on 'an individual and not a class-wide basis,' pursuant to Stolt-Nielsen . . . . [Citation.] In opposition to the petition, Plaintiff...