Judge v. Superior Court CA2/7 ( 2016 )

Filed 8/15/16 Judge v. Superior Court CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GERMAINE JUDGE, B267694
Petitioner, (Los Angeles County
Super. Ct. No. BC460592)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
NIJJAR REALTY, INC., et al.,
Real Parties in Interest.
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.
_______________________________________
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 on
1 Undesignated statutory references are to the Code of Civil Procedure.
2
behalf 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.)
3
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.)
4
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’s
5
clause 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 argued that if the Court ordered arbitration, ‘it must order arbitration of all
Plaintiff’s claims, including the PAGA claims and the class action claims.’ [Citation.]
The Court ruled on the issue of class and representative arbitration by granting the
petitions to compel arbitration (in BC478836 [the class action] and BC460592 [the
individual/PAGA action]) only as to Plaintiff’s individual claims. The Court had the
authority to address the issue because the parties expressly and specifically submitted the
matter for determination by the Court.”
“Once the Court ruled on the issue of class and representative arbitration, the
Arbitrator lost authority, even under the AAA rules, to decide the issue. As discussed
above, the parties submitted the issue of class and representative arbitration to the Court
for determination and the Court ruled on the issue by granting Defendants’ petitions to
compel arbitration of Plaintiff’s individual claims. The AAA Rules, on which Plaintiff
relies, require that the Arbitrator follow the Court’s ruling. See AAA Supplementary rule
1(c) (‘Whenever a court has, by order, addressed and resolved any matter that would
otherwise be decided by an arbitrator under these Supplementary Rules, the arbitrator
shall follow the order of the court.’). [Citation.] By issuing the Clause Construction
Award and finding the arbitration agreement ‘expressly authorizes class/representative
arbitration,’ the Arbitrator violated AAA Supplemental Rule 1(c) and exceeded her
authority.” (See Judge I, supra, 232 Cal.App.4th at pp. 627-628.) Judge appealed the
trial court’s April 2, 2013 order.
6
E. Judge’s Appeal
In a published decision, we dismissed the appeal. We held: “Although an order
vacating a final arbitration award is appealable under Code of Civil Procedure 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.” (Judge I, supra, 232 Cal.App.4th at p. 622, fn. omitted.) Therefore, we
concluded, “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.” (Ibid.)
After determining that California procedural law governed the appealability of the
trial court’s order vacating the clause construction award (Judge I, supra, 232
Cal.App.4th at pp. 629-632), we noted that section 1294 “governs appealability of orders
in arbitration matters in California.” (Id. at p. 632.) Although section 1294, subdivision
(c), provides that an order vacating an award is appealable unless a rehearing is ordered,
and the trial court here did not order a rehearing, the trial court’s order vacating the
clause construction award did not vacate an arbitration “award,” as California law defines
that term. Therefore, we held that, “[b]ecause the clause construction award does not
qualify as an ‘award under section 1283.4, the trial court’s order is not an order vacating
an arbitration award, and it is not appealable.” (Judge I, supra, 232 Cal.App.4th at pp.
633-634.)
If the clause construction award is not an arbitration award for purposes of
appellate jurisdiction, can it be an arbitration award for purposes of trial court
jurisdiction? In other words, if we did not have jurisdiction to hear an appeal from an
order vacating the clause construction award because the award did not resolve all of the
questions necessary to determine the controversy, did the trial court have jurisdiction to
vacate the clause construction award in the first place? Logically, the answer is no, but
we did not have jurisdiction in Judge I to give that answer (because we had no
7
jurisdiction to hear the appeal). We did state, however, the following: “Because the
order vacating the clause construction award is not appealable, the resolution of whether
the trial court had jurisdiction to vacate a less than final arbitration award in the first
instance must await future determination. It is highly unlikely, however, that the trial
court had jurisdiction to rule on the Nijjar defendants’ petition, which sought to vacate a
less than final ruling made by the arbitrator. [Citation.] It does not seem right that the
trial court would have jurisdiction to vacate an interim award and this court would not
have jurisdiction to review the trial court’s ruling. Nothing in this opinion should be
construed as precluding Judge from filing in the trial court a motion for reconsideration
of the order vacating the interim clause construction award, at least in the
individual/PAGA action, which is the only case in which the trial court vacated the
interim award.” (Judge I, supra, 232 Cal.App.4th at p. 634, fn. 12.) One would think
that, if on remand Judge relied on this portion of our opinion and made such a motion for
reconsideration, the trial court would see that it, like this court, lacked jurisdiction to
vacate the clause construction award.
F. Judge’s Motions for Reconsideration and the Nijjar Defendants’
Motion To Enforce the Court’s Order Compelling Arbitration of
Judge’s Individual Claims
One would be wrong. Judge filed that very motion, and the trial court denied it.
On May 15, 2015 Judge filed a motion for reconsideration of the court’s April 2,
2013 order vacating the clause construction award. Judge argued that this court had
“made it clear that the Clause Construction Award issued by the Arbitrator was not
‘final,’” and, because the trial court had “no jurisdiction to vacate a non-final ‘Clause
Construction Award,’” the trial court should vacate its order vacating the clause
construction award “and allow the matter to proceed to arbitration, the forum that the
parties agreed would resolve their disputes.” The Nijjar defendants argued in opposition
to the motion that the court should refrain from ruling on the motion until the United
States Supreme Court ruled on their petition for certiorari, and that this court’s opinion in
8
Judge I was “plainly insufficient to compel the Court to do anything, by the panel’s own
admission.”
Judge subsequently filed another motion for reconsideration, asking the court to
reconsider its prior order compelling arbitration of Judge’s “individual” PAGA claim,
although, as noted, the Nijjar defendants did not ask for such an order in the
individual/PAGA action and it is not clear the court ever made such an order. Judge,
concerned the trial court “appears to have only ordered the arbitration of [Judge’s]
‘individual’ PAGA claims,” cited a recent California case holding that the court had no
authority to bifurcate a PAGA claim into individual and representative claims, because “a
single representative PAGA claim cannot be split into an arbitrable individual claim and
a nonarbitrable representative claim.” (Williams v. Superior Court (2015) 237
Cal. App. 4th 642, 649.) Judge asked the court to modify its prior order, and either order
the PAGA claims to arbitration in their entirety or submit the issue to the arbitrator.
Judge did not ask the court to bifurcate and stay her PAGA claims while the arbitrator
decided her other claims.
The Nijjar defendants opposed this motion for reconsideration too, arguing that the
court should strike the motion because it was untimely and “contained almost four pages
of single-spaced quotes and numerous footnotes and smaller quotes,” making it an
“oversized brief filed without the Court’s permission,” and again asking the court to wait
until the United States Supreme Court ruled on its petition for certiorari.2 The Nijjar
defendants also argued that the court lacked jurisdiction to hear Judge’s motion because
the arbitration “is still pending – and is decidedly not final, by the Court of Appeal’s own
reckoning . . . .” The Nijjar defendants asked the court in the alternative to order Judge to
pursue her PAGA claim in court because, they contended, the California Supreme
2 The trial court did not wait to rule on the motion for reconsideration, and the
United States Supreme Court subsequently denied the Nijjar defendants’ petition for
certiorari. (See Judge I, supra, 232 Cal. App. 4th 619, cert. den. (2015) __ U.S. __ [136
S. Ct. 87].)
9
Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th
348 (Iskanian), “clearly does not permit the arbitration of [a] representative claim
brought under [PAGA].”
Meanwhile, in the class action, the Nijjar defendants filed a motion entitled,
“Motion to Enforce the Court’s September [11], 2012 Order Compelling Arbitration of
Plaintiff’s Individual Claims.”3 Although it is not clear from the moving papers, the
motion essentially became necessary because, as noted in Judge I, “the Nijjar defendants
did not move to vacate the clause construction award in the class action,” and therefore,
as we stated in footnote 16 of our opinion in Judge I, “that interim award remains in
effect in the arbitration.” (Judge I, supra, 232 Cal.App.4th at p. 638, fn. 16.) The
motivation for the Nijjar defendants’ motion apparently was Judge’s service of written
discovery in the class action arbitration, and the arbitrator’s ruling lifting the stay of the
class action arbitration.4 Instead of moving to vacate the clause construction award in the
class action, however, the Nijjar defendants asked the trial court “to enforce” (their
interpretation of) the trial court’s prior order.
In their “motion to enforce,” the Nijjar defendants argued that Judge and the
arbitrator were “willfully failing and refusing to comply” with the court’s September 11,
2012 order that the class action “be submitted to binding arbitration on an individual
basis,” and that “class arbitration is not permitted by the arbitration agreement.” The
Nijjar defendants asked the trial court to ignore footnote 16 of our opinion in Judge I
3 Thus, the Nijjar defendants were arguing on the one hand that, despite this court’s
decision in Judge I, the fact the arbitration was not final did not prevent the trial court
from vacating the clause construction award and hearing the Nijjar defendants’ motion
“to enforce” the order that sent the matter to arbitration, and on the other hand that,
because of this court’s decision in Judge I, the fact the arbitration was not final prevented
the trial court from hearing Judge’s motion for reconsideration of the same order.
4 On June 22, 2015 the arbitrator sent the parties an email stating: “The stay related
to [the] class claims is hereby lifted. Discovery as to [Judge’s] individual and class
claims may proceed and the parties are encouraged to be diligent about this discovery so
it can be completed before memories fade and documents are lost or destroyed.”
10
because it was “just a general observation that was not the basis of the appeal,” it was
“not necessary” to our decision, and it “did not determine the rights of the parties in any
subsequent trial or appeal because the award itself was found to lack finality and [the
Nijjar] defendants would therefore be able to petition to vacate it in future proceedings.”
Critiquing our opinion in Judge I, the Nijjar defendants added, “There is no authority
whatsoever that even remotely suggests that the law actually required Defendants to file
two identical petitions to vacate the same exact award, and to so hold was the most
obvious kind of judicial policy making imaginable.”
In opposition to this motion, Judge argued that the trial court had no jurisdiction to
grant the motion, and stated that the Nijjar defendants “can make the appropriate motion
to vacate if they disagree with” the arbitrator’s final award. Judge also argued that the
motion was untimely under section 1288, which requires that a party must file a petition
to vacate or correct an award within 100 days of service of the award.
On September 29, 2015 the trial court issued two written rulings, one in the
individual/PAGA action and one in the class action. In the individual/PAGA action, the
trial court denied Judge’s motion for reconsideration of the order vacating the clause
construction award. The trial court stated, “[T]he Court of Appeal did not make an
express finding that this Court lacked jurisdiction to rule on [the Nijjar defendants’]
petition to vacate the ‘Clause Construction Award.’ In fact . . . the Court of Appeal
expressly stated the ‘resolution of whether the trial court had jurisdiction to vacate a less
than final arbitration in the first instance must await future determination.’ The Court of
Appeal merely questioned whether this Court ‘would have jurisdiction to vacate an
interim award’ when the Court of Appeal ‘would not have jurisdiction to review’ this
Court’s ruling.” The trial court concluded it had jurisdiction to vacate the clause
construction award because the parties’ agreement provided for arbitration under the
11
AAA rules, and the AAA rules provide for judicial review of a clause construction
award.5
On Judge’s motion for reconsideration of the order compelling arbitration of her
PAGA claims, the trial court granted the motion in part, but not in a way Judge had
requested. Citing Williams v. Superior Court, supra, 237 Cal. App. 4th 642, the court
found that “recent case law establishes that representative PAGA claims cannot be split
into arbitrable individual PAGA claims and nonarbitrable PAGA representative claims.”
The court determined therefore that its September 11, 2012 order compelling arbitration
of Judge’s individual PAGA claim was “no longer supported by law.” Rather than
ordering the PAGA claims to arbitration as Judge had requested, however, the trial court
“sever[ed] and stay[ed] [Judge’s] representative PAGA claims pending the outcome of
the individual arbitration.” The court reasoned that “the California Supreme Court’s
ruling in Iskanian suggests representative PAGA claims are not subject to arbitration,
pursuant to an arbitration agreement entered into before any dispute arises, even under
the FAA.”
In the class action, the trial court denied the Nijjar defendants’ motion to enforce
the September 11, 2012 order, ruling that they were “essentially asking the Court to
interfere with the arbitration proceedings by forcing the Arbitrator to comply with” the
court’s prior order, which the trial court stated it did not have jurisdiction to do. The
court stated that footnote 16 of our opinion in Judge I did “not constitute the law of the
case,” and, in any event, “as a practical matter” the court, the arbitrator, and the parties
had treated the PAGA action and the class action “as one for purposes of arbitration and
the petition to vacate the ‘Clause Construction Award.’” The court stated that when it
vacated the clause construction award it “assumed the parties were moving on/addressing
both cases,” and the court “intend[ed] the ruling to apply to both the PAGA action and
the class action.” Although the trial court denied the Nijjar defendants’ motion, the court
5 At the hearing on the motions, the trial court stated, “it’s clear that the AAA rule
wants a mechanism in which it can go back to the courts,” and because the parties
“agreed to following the AAA rule . . . the court has authority to do so.”
12
emphasized how it would rule when it had jurisdiction: “If the Arbitrator elects to
proceed with arbitration on the class claims, in violation of the Court’s September 11,
2012 Order, the arbitration award may be subject to a motion to vacate.”
G. Judge’s Petition for Writ of Mandate and This Court’s Order
Judge filed a petition for writ of mandate asking this court to direct the trial court
to vacate its order vacating the clause construction award and “refusing to order the
PAGA claims to arbitration and instead severing them and staying them.” Judge argued
that the trial court’s order “disregarded this Court’s clear reasoning underlying its
decision to dismiss [the] previous appeal,” and was “directly contrary to the parties’
arbitration agreement and the FAA . . . .”
We issued an order stating that the record filed in support of the petition
established Judge was entitled to the relief she was requesting from this court. We
notified the parties that, “[i]n view of the clear legal error apparent in [the trial court’s]
orders,” we intended “to issue a peremptory writ of mandate in the first instance.” (See
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal. 3d 171, 177-183.) We also stated
that the trial court could “avoid the issuance of a peremptory writ by vacating its orders
of April 2, 2013 and September 29, 2015, and issuing a new order denying the petition to
vacate the Clause Construction Award.”
On January 19, 2016 the trial court declined to vacate its April 2, 2013 and
September 29, 2015 orders. The court’s minute order states: “After due consideration,
and additional briefing by the [Nijjar] defendants, this Court will not be vacating its
orders of April 2, 2013 and September 29, 2015.” The Nijjar defendants filed an
additional opposition to Judge’s petition for writ of mandate.
DISCUSSION
Although we stated in Judge I that it was “highly unlikely . . . that the trial court
had jurisdiction to rule on the Nijjar defendants’ petition” to vacate the clause
13
construction award, we did not have jurisdiction to reach the issue. (Judge I, supra, 232
Cal.App.4th at pp. 628, 634, fn. 12.) We do now.6
A. The Trial Court Did Not Have Jurisdiction To Vacate the Clause
Construction Award
The trial court can confirm, vacate, or correct an arbitration award. (See § 1285
[“[a]ny party to an arbitration in which an award has been made may petition the court to
confirm, correct or vacate the award”].) We held in Judge I, however, that the clause
construction award was not an arbitration award. “Section 1283.4 provides that an
arbitration award must ‘include a determination of all the questions submitted to the
arbitrators the decision of which is necessary in order to determine the controversy.’ The
clause construction award in this case does not determine all of the questions that are
necessary for the arbitrator to decide in order to determine the controversy. Rather, the
clause construction award only resolved what the arbitrator described as the ‘threshold
matter’ of ‘whether the applicable arbitration clause permits the arbitration to proceed on
behalf of or against a class,’ and allowed the class claims to continue.” (Judge I, supra,
232 Cal.App.4th at p. 633.) Therefore, the clause construction award is not an award the
trial court can confirm, vacate, or correct. (Id. at p. 635; see Cinel v. Christopher (2012)
203 Cal. App. 4th 759, 767 [“[b]efore confirming an award, the trial court has a duty, in
order to follow the dictates of section 1283.4, to ensure that the arbitrator’s ‘award’ is an
‘award’ within the meaning of that statute”]; Knight et al., Cal. Practice Guide:
Alternative Dispute Resolution (The Rutter Group 2016) ¶ 5:422.5 [although
“[a]rbitration proceedings may be bifurcated,” an “interim order cannot be confirmed,
corrected or vacated by a court”].)
6 We review the trial court’s determination that it had jurisdiction to vacate the
clause construction award de novo. (See In re Estate of Kraus (2010) 184 Cal. App. 4th
103, 112-113; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal. App. 4th 1, 6; Day v.
Collingwood (2006) 144 Cal. App. 4th 1116, 1123-1124.)
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The Nijjar defendants argue that “[t]he jurisprudence developed under the
FAA . . . clearly respects the rights of parties to fashion their ability, by contract, to
obtain interim review of awards issued pursuant to ‘formal, agreed-to’ bifurcated
proceedings.” Citing a bevy of federal cases allowing petitions to vacate interim
arbitration awards under Section 10 of the FAA (9 U.S.C. § 10),7 which governs orders
vacating an arbitration award in federal court,8 the Nijjar defendants assert that it is
“beyond question that parties to an agreement to arbitrate governed by the FAA have the
right to an immediate judicial challenge to a ‘clause construction award’ under that
7 Bosack v. Soward (9th Cir. 2009) 586 F.3d 1096, 1104; Hart Surgical, Inc. v.
Ultracision, Inc. (1st Cir. 2001) 244 F.3d 231, 233-234; Legion Ins. Co. v. VCW, Inc.
(8th Cir. 1999) 198 F.3d 718, 720; Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc.
(2d Cir. 1998) 157 F.3d 174, 176; Folse v. Richard Wolf Medical Instruments Corp.
(5th Cir. 1995) 56 F.3d 603, 605; Trade & Transport v. Natural Petro. Charterers
(2d Cir. 1991) 931 F.2d 191, 195, 196; International Bancshares Corp. v. Lopez (S.D.
Tex. 2014) 57 F. Supp. 3d 784, 787; Lousiana Health Service Indemn. Co. v. Gambro A B
(W.D.La. 2010) 756 F. Supp. 2d 760, 764.
8 Section 10 of the FAA, 9 United States Code section 10, subdivision (a) provides:
“In any of the following cases the United States court in and for the district
wherein the award was made may make an order vacating the award upon the application
of any party to the arbitration—
“(1) where the award was procured by corruption, fraud, or undue means;
“(2) where there was evident partiality or corruption in the arbitrators, or either of
them;
“(3) where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and
material to the controversy; or of any other misbehavior by which the rights of any party
have been prejudiced; or
“(4) where the arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject matter submitted was not made.”
15
statute, when they arbitrate under an agreement or set of rules that provides for such
review.”
Not in California. As the California Supreme Court stated in Cable Connection,
Inc. v. DIRECTV, Inc. (2008) 44 Cal. 4th 1334, “‘the United States Supreme Court does
not read the FAA’s procedural provisions to apply to state court proceedings.’. . . As we
have noted, the provisions for judicial review of arbitration awards in sections 10 and 11
of the FAA are directed to ‘the United States court in and for the district where the award
was made.’” (Id. at p. 1351; see SWAB Financial v. E*Trade Securities (2007) 150
Cal. App. 4th 1181, 1195 [“[i]n cases falling under the United States Arbitration Act,
chapter 1, California courts are not required to apply title 9 United States Code section
10, which governs vacating arbitration awards under the federal act”]; Ovitz v. Schulman
(2005) 133 Cal. App. 4th 830, 851 [“[t]he language of the relevant sections of the FAA—
sections 10 and 12—strongly suggest that they apply only in federal court proceedings”];
Siegel v. Prudential Ins. Co. of America (1998) 67 Cal. App. 4th 1270, 1290 [“[t]he
language of section 10 with its reference to courts of the United States and the ‘district’
where the award was made is inconsistent with it being applicable to litigation before
state judges”]; see also Swissmex-Rapid S.A. de C.V. v. SP Systems, LLC (2012) 212
Cal. App. 4th 539, 546 [“section 9 of the FAA is procedural in nature and does not apply
to state court litigation”].)9
9 Courts in other states have reached a similar conclusion. (See, e.g., Raymond
James Financial Services, Inc. v. Honea (Ala. 2010) 55 So. 3d 1161, 1168 [Ҥ 10
represents procedural as opposed to substantive law”]; Trombetta v. Raymond James
Financial Services, Inc. (Pa. Super. Ct. 2006) 907 A.2d 550, 569 [“FAA § 10 only
applies to proceedings in United States district courts”]; Atlantic Painting & Contracting
Inc. v. Nashville Bridge Co. (Ky. 1984) 670 S.W.2d 841, 846 [“there is . . . nothing in the
[FAA] remotely suggesting that the ‘motion to vacate’ procedure . . . has any application
at all to such state action,” and the FAA’s “procedural aspects are confined to federal
cases”]; see also Nafta Traders, Inc. v. Quinn (Tex. 2011) 339 S.W.3d 84, 99 [“it is not
clear to what extent the FAA’s procedures, prescribed expressly for federal courts, ever
apply in state courts”]; St. Fleur v. WPI Cable Systems/Mutron (Mass. 2008) 879 N.E.2d
27, 33 [“[b]ecause the procedures in 9 U.S.C. § 4 do not apply to State courts, a State
court may apply its own law”].)
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Nor, contrary to the trial court’s ruling, did the parties’ arbitration agreement,
which refers to AAA arbitration, confer jurisdiction on the trial court in this case. (Judge
I, supra, 232 Cal.App.4th at p. 637; see Airlines Reporting Corp. v. Renda (2009) 177
Cal. App. 4th 14, 20 [“‘parties cannot confer jurisdiction by consent’”]; In re A.C. (2005)
130 Cal. App. 4th 854, 860 [subject matter jurisdiction “cannot be conferred by stipulation
[or] consent”]; see also Baker v. Varney (1900) 129 Cal. 564, 566 [“‘[i]t is . . . a well-
settled and universally applied principle that consent of parties cannot confer upon a
court jurisdiction which the law does not confer’”].)10 Moreover, the AAA rule
referenced by the trial court and cited by the Nijjar defendants, Rule 3 of the AAA
Supplementary Rules for Class Arbitrations, provides in relevant part: “‘Upon
appointment, the arbitrator shall determine as a threshold matter, in a reasoned, partial
final award on the construction of the arbitration clause, whether the applicable
arbitration clause permits the arbitration to proceed on behalf of or against a class (the
‘Clause Construction Award’). The arbitrator shall stay all proceedings following the
issuance of the Clause Construction Award for a period of at least 30 days to permit any
party to move a court of competent jurisdiction to confirm or to vacate the Clause
Construction Award.’” (Judge I, supra, 232 Cal.App.4th at p. 626, fn. 6.) This rule,
which governs the conduct of arbitrators, not courts, describes a 30-day period to allow a
party to make a motion to vacate in “a court of competent jurisdiction.” The trial court,
unlike a federal district court, was not a court of competent jurisdiction for hearing a
10 The agreement did not contain a choice of law provision mandating application of
the FAA’s procedural provisions. (See Mave Enterprises, Inc. v. Travelers Indemnity
Company of Connecticut (2013) 219 Cal. App. 4th 1408, 1429 [“a state court applies its
own procedural law—here, the procedural provisions of the CAA—absent a choice-of-
law provision expressly mandating the application of the procedural law of another
jurisdiction”]; Valencia v. Smyth (2010) 185 Cal. App. 4th 153, 177 [“the FAA’s
procedural provisions do not apply in state court unless the parties expressly adopt
them”].)
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motion to vacate an award that does not qualify as an arbitration award under section
1283.4.
B. The Trial Court Erred by Severing and Staying Judge’s PAGA Claims
As noted, the trial court originally granted the Nijjar defendants’ motion to compel
arbitration of the individual/PAGA action. Although it is unclear whether the court’s
order compelling arbitration ordered only Judge’s individual claims to arbitration, Judge
apparently was concerned the court may have made such an order. Therefore, on remand
after Judge I, Judge asked the trial court to modify its order and either order the
individual/PAGA action to arbitration in its entirety, or submit the issue to the arbitrator.
Judge did not ask the court for an order bifurcating and staying her PAGA claims.
Nevertheless, the court made such an order: “[Judge’s] motion for reconsideration of the
Court’s September 11, 2012 Order granting [the Nijjar] Defendants’ petition to compel
arbitration of the PAGA claims on an ‘individual’ basis is granted (in part). The Court
severs and stays [Judge’s] representative PAGA claims pending the outcome of the
individual arbitration.”
This was error. Although purporting to grant Judge’s motion, the court actually
denied it by imposing a remedy Judge never requested but that favored the Nijjar
defendants. (See Monarch Healthcare v. Superior Court (2000) 78 Cal. App. 4th 1282,
1286 [an order should not “issue like a ‘bolt from the blue out of the trial judge’s
chambers’”].) Judge’s motion for reconsideration asked the court to confirm it had
previously ordered Judge’s PAGA claims to arbitration, not to enter a new order severing
and staying her PAGA claims. The Nijjar defendants did not file a motion asking the
court, rather than the arbitrator, to decide Judge’s PAGA claims. To the contrary, the
Nijjar defendants filed and prevailed on a motion to compel arbitration of Judge’s PAGA
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claims.11 Counsel for Judge argued at the hearing that the court had already ordered the
parties to arbitrate Judge’s PAGA claims, and now the court was “saying the parties are
not to arbitrate the PAGA claim,” which counsel for Judge pointed out was “a
180-degree reversal of your previous decision.” The court acknowledged, “it could be.”
Although courts are entitled to change their minds and come up with new ideas, they
should give the parties sufficient notice and opportunity to brief those ideas before acting
on them.
C. Conclusion
The trial court did not have jurisdiction to vacate the arbitrator’s clause
construction award in the individual/PAGA action under section 1285 because the clause
construction award is not an arbitration award under section 1283.4. The trial court did
not have jurisdiction to vacate the arbitrator’s clause construction award in the class
action because the Nijjar defendants did not file a petition to vacate the award in that
case, and, even if they had, the trial court would not have had jurisdiction to grant it. The
trial court also erred in granting (but really denying) Judge’s motion for reconsideration
of the order compelling arbitration of her PAGA claims.
The trial court’s rulings reflect that it wanted the arbitrator to rule in a particular
way and intended to make sure the arbitrator did so, and that the court has decided it will
grant any future petition to vacate the Nijjar defendants may file, regardless of the
arguments the parties make or the result of the arbitration. As the Nijjar defendants argue
in opposition to Judge’s petition in this proceeding, the trial court has “made itself
exceedingly clear as to how the arbitrator is required to proceed on [the PAGA] claims,”
“the Arbitrator would be in violation of the court’s Order if she continues to require class
11 Indeed, both parties (at different times) sought arbitration of Judge’s PAGA
claims: Judge in her motion for reconsideration and the Nijjar defendants in their original
petition to compel arbitration in the individual/PAGA action. The Nijjar defendants
specifically argued that “claims aggrieved under PAGA are arbitrable,” and that “PAGA
claims which give plaintiffs the right to seek recovery of civil penalties on behalf of the
state in their capacity of ‘private attorneys general’ are . . . most assuredly so.”
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arbitration of [Judge’s] Labor Code claims,” and “any award issued on that basis will be
subject to [a] subsequent petition to vacate.” According to the Nijjar defendants, “[i]t
. . . could not be clearer at this juncture that if the case proceeds to arbitration on a class
basis and results in some class arbitration award, any award will be summarily vacated by
the trial court,” and “the trial court has clearly indicated, on no fewer than six occasions,
that it will vacate any class-based arbitral award . . . .” The Nijjar defendants even
suggest that they may not participate in the arbitration because they believe the trial court
“intends to vacate” the award anyway.
We share the Nijjar defendants’ view of the trial court’s rulings and the court’s
statements indicating it has already made up its mind on issues that will be briefed and
argued in the future. Therefore, in the interests of justice, we direct that a different trial
judge hear further proceedings in this matter. (See § 170.1, subd. (c); People v. LaBlanc
(2015) 238 Cal. App. 4th 1059, 1079; In re Z.K. (2011) 201 Cal. App. 4th 51, 72; see also
Webber v. Webber (1948) 33 Cal. 2d 153, 158; Pacific etc. Conference of United
Methodist Church v. Superior Court (1978) 82 Cal. App. 3d 72, 86-87; Rosenfield v.
Vosper (1941) 45 Cal. App. 2d 365, 371.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior court (1) to
vacate its April 2, 2013 order vacating the arbitrator’s clause construction award and its
September 29, 2015 order denying Judge’s motion for reconsideration, and to enter a new
order denying the Nijjar defendants’ petition to vacate the clause construction award;
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(2) to vacate its September 29, 2015 order granting in part Judge’s motion for
reconsideration of the court’s order compelling “individual” arbitration of Judge’s PAGA
claims; and (3) to assign a different judge to hear the case on remand. Petitioner is to
recover her costs in connection with this petition.
SEGAL, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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