Twentieth Century for Film v. Superior Ct., No. B136732.

• Court: California Court of Appeals
• Writing for the Court: Hastings
• Citation: 79 Cal.App.4th 188,93 Cal.Rptr.2d 896
• Parties: TWENTIETH CENTURY FOX FILM CORPORATION, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Porche Lottermoser, Real Party in Interest.
• Docket Number: No. B136732.
• Decision Date: 21 March 2000

93 Cal.Rptr.2d 896 79 Cal.App.4th 188 TWENTIETH CENTURY FOX FILM CORPORATION, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Porche Lottermoser, Real Party in Interest. No. B136732. Court of Appeal, Second District, Division 4. March 21, 2000. Rehearing Denied April 7, 2000.

[79 Cal.App.4th 189]

Jeffrey F. Webb and M. Michelle Alvarez, Los Angeles, for Petitioner.

No appearance for Respondent.

Stephen A. Ebner, Calabasas, and C. Stephen Love for Real Party in Interest.

[93 Cal.Rptr.2d 897]

HASTINGS, J.

We issued an alternative writ to review denial of a motion brought by petitioner, Twentieth Century Fox Film Corporation (petitioner),

79 Cal.App.4th 190

to stay this action pending outcome of a petition to compel arbitration of the dispute. While we conclude that respondent acted in excess of its power, we have been advised that the facts upon which we based issuance of the alternative writ no longer exist, therefore, we dismiss the petition.

STATEMENT OF FACTS

On June 10, 1999, Porche Lottermoser, real party in interest, filed in the Los Angeles Superior Court a "Complaint for Damages for Violations of the California Fair Employment and Housing Act (FEHA)," case No. BC211739 (the State Court action). Petitioner was the sole named defendant. Lottermoser, an employee of petitioner, complained of sexual harassment and discrimination based on sex by one of her supervisors in violation of California Government Code section 12940, subdivisions (h) and (i).

On July 12, 1999, petitioner filed a petition to compel arbitration in the United States District Court for the Central District of California (Twentieth Century Fox Film Corp. v. Lottermoser, No. 99-07114 AHM, JWJx) (the Federal Action). The petition alleged that Lottermoser was a member of the International Alliance of Theatrical Stage Employees and Moving Picture Technicians Union, Laboratory Film/Video Technicians, Local 683 and that a collective bargaining agreement existed between the union and petitioner which required arbitration of employee claims. A copy of the collective bargaining agreement was attached. The petition requested that the court order Lottermoser to submit her claims to arbitration as required by the collective bargaining agreement. The petition was served on Lottermoser's attorney on July 15, 1999, and he acknowledged receipt of the petition on August 30,1999.

On October 22, 1999, petitioner filed a motion to stay the State Court Action pending resolution of the Federal Action.¹ The motion was based upon Code of Civil Procedure section 1281.4 (see the Discussion, infra, all further statutory references will be to the Code of Civil Procedure unless otherwise noted.) The motion was supported by the Declaration of Jeffrey F. Webb, counsel for petitioner. He identified the fact that the petition to arbitrate had been filed in the Federal Action, and that it was pending, and he attached a copy of a stipulation dated July 28, 1999, signed by counsel for Lottermoser, that the State Court Action should be stayed pending resolution of the Federal Action.

79 Cal.App.4th 191

Lottermoser filed opposition to the motion. She argued that petitioner had failed to diligently proceed with its petition in the Federal Action and suggested that this "inaction vests this Court with the absolute discretion to deny [petitioner's] motion herein." Relying on the third paragraph of section 1281.4, she argued the court had discretion to deny the stay because her FEHA claim did not qualify for treatment under the collective bargaining agreement.

On November 8, 1999, the motion was...