Pacific Fertility Cases ( 2022 )

Filed 11/3/22; Certified for Publication 12/1/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
PACIFIC FERTILITY CASES A158155
(San Francisco City & County
Super. Ct. No. CGC18565215,
JCCP No. 5021)
Plaintiffs in these coordinated cases contracted with defendant Pacific
Fertility Center (Pacific) for fertility-related services, including egg and
embryo cryopreservation and long-term freezer storage.1 They filed suit after
one of the cryogenic storage tanks (Tank Four) used to preserve their eggs
and embryos failed. Defendant and appellant Chart Inc. (Chart)
manufactured the storage tank. Defendants and appellants Praxair, Inc.,
and Praxair Distribution, Inc. (collectively, Praxair2) sold the tank to Pacific
and assisted with its installation.
Plaintiffs signed informed consent agreements and arbitration
agreements with Pacific, but not with Chart or Praxair. Chart and Praxair
1Pacific is not a party to this appeal, the parties having stipulated that
plaintiffs’ claims against it will be resolved through arbitration.
2 Praxair Distribution Inc. is a subsidiary of Praxair Inc.
1
nevertheless filed motions to compel arbitration on equitable estoppel
grounds, which the trial court denied.3 On appeal, they continue to press
their equitable estoppel arguments. We affirm.
BACKGROUND
On engaging Pacific’s services, plaintiffs signed “ ‘Informed Consent
and Agreement to Perform Egg Cryopreservation’ ” forms.
These forms provided in part: “In spite of reasonable precautions, any
of the following may occur in the lab that would prevent the establishment of
a pregnancy: [¶] . . . [¶] Bacterial contamination or a laboratory accident may
result in loss or damage to some or all of the eggs or embryos. [¶] Laboratory
equipment may fail and/or extended power losses can occur which could lead
to the destruction of eggs, sperm and embryos.”
The consent forms further provided: “Dispute Resolution: Medical
Claims. It is understood that any dispute as to medical malpractice, that is,
as to whether any medical services rendered under this contract were
unnecessary or unauthorized or were improperly, negligently or
incompetently rendered, will be determined by submission to arbitration as
provided in a separate arbitration agreement signed by the parties.” They
additionally provided: “Dispute Resolution: Other Claims. Except for any
claim, controversy or dispute covered by the Arbitration Agreement, any
claim, controversy or dispute arising out of or relating to this Agreement or
the breach, termination, enforcement, interpretation or validity of this
Agreement . . . shall be submitted to mediation in the County of San
Francisco, California before a single mediator.”
3 Former defendants Pacific MSO, LLC and Prelude Fertility, Inc., also
moved, unsuccessfully, to compel arbitration. They subsequently reached a
settlement with plaintiffs, and pursuant to the parties’ joint request, we have
dismissed their appeals.
2
In addition to the informed consent forms, plaintiffs signed arbitration
agreements. Article 1 of these agreements provided: “It is understood that
any dispute as to medical malpractice, that is, as to whether any medical
services rendered under this contract were unnecessary or unauthorized or
were improperly, negligently or incompetently rendered, will be determined
by submission to arbitration as provided by California law, and not by a
lawsuit or resort to court process except as California law provides for judicial
review of arbitration proceedings. Both parties to this contract by entering
into it, are giving up their constitutional right to have any such dispute
decided in a court of law before a jury, and instead are accepting the use of
arbitration.”
The arbitration agreements further provided “Patient understands and
agrees that any dispute of the sort described in Article 1 between Provider
and Patient will be subject to compulsory binding arbitration.” It defined
“Provider” as including “the undersigned doctor, nurse practitioner, nurse
midwife, or other health care provider and his or her professional corporation
or partnership, and any employees, agents, successors-in-interest, heirs and
assigns of the foregoing individuals or entities. The provider signing this
agreement signs it on behalf of all the foregoing individuals and entities, and
intends to bind each of them to arbitration to the full extent permitted by
law.”
Chart and Praxair were not signatories to either the informed consent
or arbitration agreements.
Following the failure of Tank Four, plaintiffs in these 54 coordinated
cases filed a “Master Complaint” alleging numerous causes of action. As to
Chart and Praxair, the complaint alleged causes of action for negligent
failure to recall the tank, strict products liability (for failure to warn,
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manufacturing defect, and design defect based on both the consumer
expectations test and the risk utility test), general negligence, and violation
of the Unfair Competition Law.
After plaintiffs agreed to arbitrate their claims against Pacific, Chart
and Praxair moved to compel arbitration of the claims asserted against them
on equitable estoppel grounds. The trial court denied their motions, and
Chart and Praxair timely appealed.
DISCUSSION
Standard of Review
“On appeal from an order denying a petition to compel arbitration, we
review the trial court’s factual determinations under the substantial evidence
standard, and we review the legal issues independently. [Citations.]
Specifically, we independently consider the question of whether and to what
extent a nonsignatory may enforce an arbitration agreement.” (Jarboe v.
Hanlees Auto Group (2020) 53 Cal.App.5th 539, 547.) “ ‘[W]e review the trial
court’s order, not its reasoning, and affirm an order if it is correct on any
theory apparent from the record.’ ” (Adajar v. RWR Homes, Inc. (2008)
160 Cal.App.4th 563, 571, fn. 3.)
Equitable Estoppel
“ ‘ “Generally speaking, one must be a party to an arbitration
agreement to be bound by it or invoke it.” [Citations.] “There are exceptions
to the general rule that a nonsignatory to an agreement cannot be compelled
to arbitrate and cannot invoke an agreement to arbitrate, without being a
party to the arbitration agreement.” ’ [Citation.] ‘ “ ‘As one authority has
stated, there are six theories by which a nonsignatory may be bound to
arbitrate: “(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-
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piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” ’ ” ’ ”
(Pillar Project AG v. Payward Ventures, Inc. (2021) 64 Cal.App.5th 671, 675.)
“Equitable estoppel generically ‘ “precludes a party from asserting
rights ‘he otherwise would have had against another’ when his own conduct
renders assertion of those rights contrary to equity.” ’ [Citations.] [¶] So, if a
plaintiff relies on the terms of an agreement to assert his or her claims
against a nonsignatory defendant, the plaintiff may be equitably estopped
from repudiating the arbitration clause of that very agreement. In other
words, a signatory to an agreement with an arbitration clause cannot ‘ “have
it both ways” ’; the signatory ‘cannot, on the one hand, seek to hold the non-
signatory liable pursuant to duties imposed by the agreement, which contains
an arbitration provision, but, on the other hand, deny arbitration’s
applicability because the defendant is a non-signatory.’ ” (Goldman v.
KPMG, LLP (2009) 173 Cal.App.4th 209, 220 (Goldman), quoting Grigson v.
Creative Artists Agency (5th Cir. 2000) 210 F.3d 524, 528.4) As Grigson
explained, “[t]he linchpin for equitable estoppel is equity—fairness.”
(Grigson, at p. 528.)
In the context of arbitration, there are two circumstances in which
equitable estoppel can apply. The first is “ ‘when the signatory to a written
agreement containing an arbitration clause “must rely on the terms of the
written agreement in asserting [its] claims” against the nonsignatory.’ (MS
Dealer Service Corp. v. Franklin (11th Cir.1999) 177 F.3d 942,
4 Where, as here, “the agreements relied upon to compel arbitration . . .
evidence transactions involving commerce, as defined in the Federal
Arbitration Act (9 U.S.C. § 1 et seq.), federal law governs the interpretation of
the agreements. [Citation.] Accordingly, decisions of the lower federal
courts, while not binding, are persuasive authority.” (Goldman, supra,
173 Cal.App.4th at p. 219.)
5
947[, abrogated on another ground in Lawson v. Life of the South Ins. Co.
(11th Cir. 2011) 648 F.3d 1166, 1171]. . . .)” (Goldman, supra,
173 Cal.App.4th at p. 218.) The second is “when the claims against the
nonsignatory are founded in and inextricably bound up with the obligations
imposed by the agreement containing the arbitration clause. In other words,
allegations of substantially interdependent and concerted misconduct by
signatories and nonsignatories, standing alone, are not enough: the
allegations of interdependent misconduct must be founded in or intimately
connected with the obligations of the underlying agreement.” (Id. at p. 219,
italics omitted.)
Intertwined Claims
Relying on In re Apple iPhone 3G Products Liability Litigation
(N.D.Cal. 2012) 859 F.Supp.2d 1084 (Apple II), Chart and Praxair maintain
plaintiffs’ claims against them are “intimately founded in and intertwined
with their arbitration agreement with [Pacific].” (Boldface & capitalization
omitted.) They assert the plaintiffs’ claims “presume[] the existence of a
contract for the storage of their biological material, and Plaintiffs rely upon
those contracts in asserting their claims.”
In Apple I, the plaintiffs sued Apple, Inc. (Apple) and AT&T Mobility,
LLC (AT&T) for violation of the California Unfair Competition law,
Consumer Legal Remedies Act, and the Magnuson-Moss Warranty Act,
alleging they misrepresented “the capabilities of the iPhone 3G on [AT&T’s]
3G data network.” (In re Apple iPhone 3G Products Liability Litigation
(N.D.Cal. 2010) 728 F.Supp.2d 1065, 1067 (Apple I). The plaintiffs alleged
they “entered into agreements with Apple or its agents and received uniform
warranties in connection with the purchase of [iPhones].” (Apple II, supra,
859 F.Supp.2d at p. 1090.) AT&T was “ ‘the exclusive provider of the
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telephone and data service plans for the iPhone 3G. . . .’ ” (Id. at p. 1091;
Apple I, supra, 728 F.Supp.2d 1065, 1067–1068.) The plaintiffs further
alleged that they “accepted [AT&T’s] terms of service,” and “ ‘entered into a
monthly agreement for iPhone service.’ ” (Apple II, at p. 1091.)
AT&T’s terms of service included an arbitration provision, and it duly
moved to compel arbitration of the claims against it.5 (Apple II, supra,
859 F.Supp.2d at p. 1091.) Observing that the plaintiffs “themselves
allege[d] that each of them accepted [AT&T’s] terms of service” (ibid.) the
court ruled they “accepted [AT&T’s] terms of service, including the
arbitration provision at issue. (Id. at p. 1092.)
Apple also sought to compel arbitration, claiming equitable estoppel
mandated arbitration of plaintiffs’ claims against it, as well. (Apple II, supra,
859 F.Supp.2d at p. 1093.) The district court explained that two
requirements must be met for equitable estoppel to apply: “(1) the subject
matter of the dispute must be ‘intertwined with the contract providing for
arbitration’; and (2) there must be a ‘relationship among the parties of a
nature that justifies a conclusion that the party which agreed to arbitrate
with another entity should be estopped from denying an obligation to
arbitrate a similar dispute with the adversary which is not a party to the
arbitration agreement.’ ” (Id. at p. 1096.)
As to the “ ‘intertwining’ ” requirement, the court noted “[p]laintiffs
themselves have contended throughout this litigation that their claims
against Defendant Apple and Defendant [AT&T] arise from their service
agreements with [AT&T].” (Apple II, supra, 859 F.Supp.2d at p. 1096.)
“Plaintiffs’ allegations,” said the court, “are based on the core allegation that
5 The plaintiffs resisted arbitration only as to their Warranty Act cause
of action. (Apple II, supra, 859 F.Supp.2d at p. 1089.)
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the [AT&T] 3G network could not accommodate iPhone 3G users, and that
Plaintiffs were deceived into paying higher rates for service which could not
be delivered on the 3G network.” (Ibid.) The court thus concluded the
plaintiffs’ claims against Apple were “ ‘intertwined’ ” with their contracts
with AT&T “insofar as Plaintiffs only had access to the [AT&T] 3G network
because they had signed contracts with [AT&T] which granted them access to
that network.” (Ibid.)
As to the “ ‘relationship among the parties’ ” requirement, the district
court observed “Plaintiffs themselves have alleged throughout this litigation
that there is a ‘relationship’ between [Apple and AT&T.]” (Apple II, supra,
859 F.Supp.2d at p. 1096.) Indeed, the plaintiffs alleged Apple and AT&T
“(1) jointly ‘engaged in a campaign’ to make misrepresentations to consumers;
(2) ‘acted in concert with each other,’ making them ‘each legally responsible
in some manner for the unlawful acts of the other’; and (3) have a ‘close
relationship’ predicated on a ‘joint agreement,’ ‘[t]hrough’ which they acted to
mislead consumers.” (Id. at p. 1097.)
The district court thus concluded “because Plaintiffs have asserted
claims in this case that arise from their contractual relationship with [AT&T]
in which they allege that both [Apple and AT&T] jointly subverted their
rights under the contract, Plaintiffs are now estopped from refusing to
arbitrate their claims against Defendants [AT&T] and Apple jointly.” (Apple
II, supra, 859 F.Supp.2d at p. 1097.)
Chart and Praxair assert Apple II holds that “a plaintiff’s allegations
are intertwined with an agreement containing an arbitration provision when
the dispute would not have arisen absent that agreement.” (Italics added.)
However, they focus on only one sentence of Apple II’s conclusion—that the
plaintiffs’ “allegations are ‘intertwined’ with their contracts with Defendant
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[AT&T], insofar as Plaintiffs only had access to the [AT&T] 3G network
because they had signed contracts with Defendant [AT&T] which granted
them access to that network.” (Apple II, supra, 859 F.Supp.2d at p. 1096.)
But Apple II’s full analysis was not the mere “but-for” test Chart and
Praxair claim. As we have quoted above, the Apple II court focused on the
plaintiffs’ allegations that their claims against Apple and AT&T arose “from
their service agreements with [AT&T].” (Apple II, supra, 859 F.Supp.2d at
p. 1096.) The court pointed out the “[p]laintiffs repeatedly requested that the
Court certify a single unified class of ‘[a]ll persons in the United States . . .
who purchased an iPhone 36 and entered into an [AT&T] 3G service
plan. . . .’ ” (Ibid.) The court further emphasized it had “repeatedly found
that [p]laintiffs’ allegations . . . are based on the core allegation that the
[AT&T] 3G network could not accommodate iPhone 3G users, and that
[p]laintiffs were deceived into paying higher rates for service which could not
be delivered on the 3G network.” (Ibid.)
Thus, as the trial court correctly stated, the analysis is not a simple
“but for” test, but whether plaintiffs’ claims demonstrate “ ‘actual reliance on
the terms of the [Pacific] agreement[s] to impose liability.’ ” Plaintiffs’ claims
against Chart and Praxair do not rely on the terms of their agreements with
Pacific. Nor do plaintiffs allege concerted action or an ongoing relationship
among Pacific, Praxair, and Chart. Thus, the circumstances here are
distinguishable from those in Appel II.
As the court in DMS Services, LLC v. Superior Court (2012)
205 Cal.App.4th 1346 aptly observed, the argument Chart and Praxair
advance “confuses the concept of ‘claims founded in and intertwined with the
agreement containing the arbitration clause’ with but-for causation. A
standard indemnity claim, for example, does not exist but for the precursor
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action giving rise to it. Nevertheless, in those circumstances, the doctrine of
equitable estoppel does not bind nonsignatory indemnitors to an arbitration
agreement between the parties to the underlying action when, as here, the
indemnity claims are not founded in the contract containing the arbitration
provision and there is no preexisting relationship between the defendants on
which to base an estoppel.” (Id. at pp. 1356–1357, italics omitted.)
Chart and Praxair also rely on Mance v. Mercedes-Benz USA (N.D.Cal.
2012) 901 F.Supp.2d 1147 (Mance). In that case, the plaintiff purchased a
Mercedes-Benz automobile from a Mercedes-Benz dealer (Dealer) and signed
a “Retail Installment Contract” containing an arbitration clause. (Id. at
pp. 1152–1153.) Mercedes-Benz “expressly warranted . . . ‘to preserve or
maintain the utility or performance of the subject vehicle.’ ” (Id. at p. 1152.)
After many unsuccessful attempts to have his car repaired, plaintiff sued
Mercedes-Benz, but not Dealer, for breach of express and implied warranty
and under the California “Lemon Law.” (Id. at p. 1153.)
Mercedes-Benz moved to compel arbitration, asserting equitable
estoppel applied. (Mance, supra, 901 F.Supp.2d at p. 1155.) The court,
noting that the plaintiff had not brought any claims against the Dealer, first
concluded “there are no claims against a nonsignatory [to the arbitration
agreement] that are ‘inherently bound up’ with claims against a signatory.”6
(Mance, at p. 1157.) As to whether plaintiff’s claims against Mercedes-Benz
arose out of the underlying contract with Dealer, the court concluded the
6 Contrary to Chart and Praxair’s assertion, the Mance court did not
“find[] the plaintiff’s claims were ‘founded in and intertwined with’ the
underlying contract between the plaintiff and the dealership.” To the
contrary, the court found “only the first theory of equitable estoppel applies,”
noting “ ‘ “intertwining” requires at least two threads to weave together.’ ”
(Mance, supra, 901 F.Supp.2d at p. 1157, quoting Southern Energy Homes,
Inc. v. Kennedy (Ala. 2000) 774 So.2d 540, 545.)
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claims for breach of warranty were “premised on, and [arose] out of, the
[purchase] contract,” because the claims “ ‘make[] reference to or presume[]
the existence of’ the underlying contract.” (Id. at p. 1157.) The court
explained “it would not be fair to allow Mr. Mance to rely upon his signing
the contract to buy the car and get the warranty but to prevent Mercedes-
Benz from attempting to enforce the contract’s arbitration clause. (Ibid.)
Accordingly, the court granted Mercedes-Benz’s motion to compel arbitration.
(Ibid.)
In the instant case, however, the claims plaintiffs have asserted against
Chart and Praxair—negligent failure to recall, strict products liability (based
on failure to warn, manufacturing defect, and design defect based on both the
consumer expectations test and the risk utility test), negligence, and violation
of the Unfair Competition Law—are not premised on, nor did they arise out
of, the plaintiffs’ fertility services agreements with Pacific. To the contrary,
these claims are based on an asserted defect in Tank 4, and on the alleged
negligence and other acts or omissions of Chart and Praxair. As the trial
court concluded, the legal duties allegedly breached by Chart and Praxair did
not “ ‘arise from the agreement[s] containing the arbitration clause.’ ”7 For
this reason, alone, the trial court’s order denying arbitration withstands
challenge on appeal.
7 As the Ninth Circuit explained in affirming the district court’s denial
of Chart’s motion to compel arbitration in a related federal action, “[i]f the
claims ‘are fully viable without reference to the terms of [the Pacific
agreements],’ equitable estoppel does not apply.” (In re Pacific Fertility
Center Litigation (9th Cir. 2020) 814 Fed.Appx. 206, 209, citing Goldman,
supra, 173 Cal.App.4th at p. 551.)
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Interdependent and Concerted Misconduct Requirement
Chart and Praxair also maintain plaintiffs have alleged “ ‘substantially
interdependent and concerted misconduct’ ” by Pacific and them. They assert
the plaintiffs’ claims all “arise from a single incident” involving
interdependent conduct as to the “performance, operation, and maintenance
of Tank 4. . . .”
“[A] nonsignatory may compel arbitration only when the claims against
the nonsignatory are founded in and inextricably bound up with the
obligations imposed by the agreement containing the arbitration clause. In
other words, allegations of substantially interdependent and concerted
misconduct by signatories and nonsignatories, standing alone, are not
enough: the allegations of interdependent misconduct must be founded in or
intimately connected with the obligations of the underlying agreement.”
(Goldman, supra, 173 Cal.App.4th at p. 219, italics omitted.)
Plaintiffs, however, did not allege “interdependent and concerted
misconduct” on the part of Pacific, on the one hand, and Chart and Praxair,
on the other. Their claims against Pacific all arose out if its failure to
disclose to plaintiffs that it had “ceded control over storage of Plaintiffs’ eggs
and embryos to Prelude and Pacific MSO.” Plaintiffs, accordingly, alleged
causes of action against Pacific for fraudulent concealment of that
information, negligent misrepresentation, violation of the Unfair Competition
Law and violation of the Consumers’ Legal Remedies Act. These are
fundamentally different claims than plaintiffs allege against Chart and
Praxair.
Chart and Praxair assert the trial court “did not apply the most directly
applicable line of authority,” (boldface & capitalization omitted) asserting it
should have relied on Boucher v. Alliance Title Co., Inc. (2005)
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127 Cal.App.4th 262 (Boucher), rather than Goldman. In Boucher, the
plaintiff sued Financial Title Company (Financial) and Alliance Title
Company (Alliance) for claims arising out of a written employment
agreement with Financial containing an arbitration clause. (Id. at p. 265.)
After Financial informed the plaintiff all of its “operations or assets were
being transferred” to Alliance and he would “no longer be working for
Financial,” he sued, alleging Alliance “rejected and refused to honor the . . .
employment contract” with Financial. (Id. at pp. 265, 267–268.)
The trial court granted Financial’s motion to compel arbitration but
denied Alliance’s motion. (Boucher, supra, 127 Cal.App.4th at p. 266.) On
appeal, Alliance asserted the doctrine of equitable estoppel applied. The
Court of Appeal reversed. (Id. at pp. 272–273.)
The appellate court explained “ ‘[E]quitable estoppel applies when the
signatory to a written agreement containing an arbitration clause “must rely
on the terms of the written agreement in asserting [its] claims” against the
nonsignatory.’ ” (Boucher, supra, 127 Cal.App.4th at p. 269.) The plaintiff’s
claims against Alliance “rely on, make reference to, and presume the
existence of” the employment agreement with Financial. (Id. at p. 272.)
Indeed, the plaintiff alleged Alliance “failed to pay him accrued wages . . . due
under the terms of the . . . employment agreement” with Financial, breached
the employment agreement “causing plaintiff damages in the form of lost
earnings and other employment benefits due under that agreement,”
required him to reject the employment agreement, and asked him to disclose
confidential information in violation of the agreement. (Ibid.) Given these
allegations, the appellate court concluded the “plaintiffs’ claims against
[Alliance] are intimately founded in and intertwined with [the employment
agreement with Financial].” (Id. at pp. 273–274.)
13
The circumstances here are entirely different. In Boucher, the plaintiff
sought to enforce the terms of his employment agreement with Financial
against Alliance. Plaintiffs in the instant case, however, are not seeking to
enforce the terms of their agreements with Pacific against Chart and Praxair.
Nor does the court need to look to the plaintiffs’ agreements with Pacific to
determine liability as to Chart or Praxair. To the contrary, plaintiffs’ claims
against Chart and Praxair are viable without reliance on the terms of the
fertility services agreements with Pacific. Thus, for this reason, as well, the
court’s order denying arbitration as to Chart and Praxair withstands
challenge on appeal.
Comparative Fault and Risk of Inconsistent Obligations
Chart and Praxair also claim arbitration of the claims against them is
required to prevent “unfair apportionment of responsibility between the
different Defendants.” Noting that “[u]nder comparative liability schemes,
the alleged loss must be divided up based on each Defendant’s liability,” they
maintain “adjudication of this action should take place in one forum where
one factfinder can apportion responsibility or . . . evaluate settlements and
comparable responsibility. . . .”
Chart and Praxair cite no authority, however, supporting their
assertion that comparative fault issues are a factor to be considered in
determining whether arbitration should be compelled on the basis of
equitable estoppel. The cases on which they rely—Dreamweaver
Andalusians, LLC v. Prudential Ins. Co. of America (2015) 234 Cal.App.4th
1168, 1171 and Van Zant v. Apple Inc. (2014) 229 Cal.App.4th 965, 967-968
(Van Zant)—concern whether the plaintiffs therein failed to join
indispensable parties.
14
Only Van Zant even mentions arbitration. In that case, the plaintiff
brought a class action against Apple alleging “false advertising, breach of
warranty, and other claims relating to Apple’s marketing and sales of the
iPhone 3G.” (Van Zant, supra, 229 Cal.App.4th at p. 967.) The trial court
ruled AT& T Mobility LLC—the cellular network carrier for the iPhone 3G—
was a necessary party. (Id. at p. 968.) The Court of Appeal reversed,
concluding there was no substantial risk of multiple or inconsistent
obligations based on “arbitrations that may arise.” (Id. at p. 977.) The court
explained that “[e]ven if arbitration proceedings were pending or ongoing . . .
inconsistent rulings are not the same as inconsistent obligations.” (Ibid.)
“ ‘ “[I]nconsistent obligations occur when a party is unable to comply with one
court’s order without breaching another court’s order concerning the same
incident.” [Citation.] In contrast, inconsistent adjudications or results occur
when a party wins on a claim in one forum and loses on another claim from
the same incident in another forum.’ ” (Ibid.) A decision on Pacific’s
comparative fault in the arbitration proceeding, however, would not bind
Chart and Praxair. “[A]n arbitration award does not have collateral estoppel
effect in favor of nonparties to an arbitration unless the arbitral parties so
agree.” (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1081,
superseded by statute on another ground as stated in Ferguson v. Corinthian
Colleges, Inc. (9th Cir. 2013) 733 F.3d 928, 937.)
As the trial court concluded, “[t]he issue of comparative fault and joint
liability on certain issues . . . does not inform the equitable estoppel analysis
unless the joint liability is based on the same or similar legal theories and/or
15
facts that underlie the obligations under Plaintiffs’ contracts with [Pacific].”
That, however, is not the case here.8
DISPOSITION
The order denying arbitration is affirmed. Costs on appeal to
respondents.
8 We deny Chart and Praxair’s request for judicial notice of Chart’s
Third-Party Complaint against Pacific in the related federal court action. For
the reasons we have discussed, the Third-Party Complaint is not relevant to
whether arbitration can be compelled on the basis of equitable estoppel. (See
People v. Stoll (1989) 49 Cal.3d 1136, 1144, fn. 5 [“even though certain
records may be judicially noticed, they must be relevant to the ‘legal question
at hand.’ ”].)
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Devine, J.*
*Judge of the Contra Costa Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
A158155, Pacific Fertility Cases
17
Filed 12/1/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
PACIFIC FERTILITY CASES A158155
(San Francisco City & County
Super. Ct. No. CGC18565215,
JCCP No. 5021)
ORDER CERTIFYING OPINION
FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter, filed on November 3, 2022,
was not certified for publication in the Official Reports. After the court’s
review of a request under California Rules of Court, rule 8.1120, and good
cause established under rule 8.1105, it is hereby ordered that the opinion
should be published in the Official Reports.
Dated: _______________________________
Acting P. J.
Trial Court: San Francisco City and County Superior Court
Trial Judge: Hon. Teri L. Jackson
Counsel:
Lieff, Cabraser, Heimann & Bernstein, LLP, Elizabeth J. Cabraser, Lexi J.
Hazam, Sarah Robin London and Tiseme Gabriella Zegeye; Walkup, Melodia,
Kelly & Schoenberger, Michael A. Kelly and Doris Cheng; Hersh & Hersh,
Nancy Hersh; Law Offices of Tiffany J. Gates, Tiffany J. Gates for Plaintiffs
and Respondents.
Morgan Lewis & Bockius LLP, Thomas M. Peterson, Molly M. Lane, David L.
Schrader and Megan A. Suehiro; Faegre Baker Daniels LLP, Tarifa B.
Laddon and Michael Jaeger; Sheuerman, Martini, Tabari, Zenere & Garvin,
Marc G. Cowde; Swanson Martin & Bell, LLP, John J. Duffy and Kevin
Ringel for Defendants and Appellants.