Bray v. Charter Communications, Inc. CA2/1 ( 2021 )

Filed 1/28/21 Bray v. Charter Communications, Inc. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
ANGELO BRAY, et al., B301182
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC721229)
v.
CHARTER COMMUNICATIONS,
INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Gregory W. Alarcon, Judge. Dismissed.
Michael S. Traylor for Plaintiffs and Appellants.
Morgan, Lewis & Bockius, Thomas M. Peterson, Nicole L.
Antonopoulos and Kathryn T. McGuigan for Defendants and
Respondents.
_______________________
Plaintiffs Angelo Bray, Andrew Collins, Staci Janisse,
Janene Skillern, and Jacqueline Wright purport to appeal from
an order denying their motion to vacate and order compelling
arbitration of their claims. Defendants move to dismiss the
appeal and for sanctions. We conclude the order appealed from is
nonappealable and dismiss the appeal. We deny the request for
sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs sued their former employer Charter
Communications, Inc., and one of their supervisors, Cecilia
Munoz (collectively, Charter), alleging various employment-
related causes of action. Included in their amended complaint,
filed November 7, 2018, are claims for employment
discrimination, retaliation, and harassment. (Gov. Code, § 12940
et seq.)
All five plaintiffs executed arbitration agreements as a
condition of their employment with Charter (the Agreement).
Citing the Agreement, Charter moved to compel arbitration
pursuant to Code of Civil Procedure section 1281.4 and stay all
proceedings.1
The two-page Agreement provides: “By accepting
employment with Charter, you and Charter . . . agree that any
and all claims, disputes, and/or controversies between you and
Charter arising from or related to your employment with Charter
shall be submitted exclusively to and determined exclusively by
binding arbitration . . . .” In bold, the Agreement further
1 Subsequent undesignated statutory references are to the
Code of Civil Procedure.
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provides: “REPRESENTATIVE, COLLECTIVE, AND CLASS
ACTION WAIVER: You and Charter understand, acknowledge
and agree that the terms of this Agreement include a waiver of
any rights that you or Charter may have to bring or participate
in an action against each other on a representative, class, or
collective basis and understand and agree that the arbitrator
shall not be permitted to order consolidation of claims or a
representative, class, or collective, arbitration.”
On March 14, 2019, the trial court granted Charter’s
motion and stayed all proceedings pending the completion of
arbitration.
On May 30, 2019, plaintiffs (and two nonparties to this
suit) filed a consolidated demand for arbitration with the
American Arbitration Association (AAA). The AAA declined to
accept the demand citing the Agreement’s “representative,
collective, and class action waiver” clause.
Plaintiffs responded by filing a motion to vacate the trial
court’s order compelling arbitration on July 26, 2019. Plaintiffs
cited sections 657 and 663 as the jurisdictional bases for their
motion to vacate. Their motion also argued the trial court had
jurisdiction under the “death knell” doctrine. Charter opposed
the motion as premature because no judgment or final award had
yet been entered by an arbitrator and the trial court had stayed
the action.
The trial court denied plaintiffs’ motion to vacate its order
compelling arbitration. First, the court held sections 657 and 663
do not apply to an order granting a motion to compel arbitration
because those sections “apply to judgments and verdicts.”
Second, the court held plaintiffs’ attack on its order compelling
arbitration was premature on the ground that an order
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compelling arbitration is appealable only from the judgment
confirming the arbitration award itself.
On September 20, 2019, plaintiffs filed a notice of appeal,
purporting to appeal from the trial court’s denial of their motion
to vacate its previous order compelling arbitration.
On February 28, 2020, Charter moved this court to dismiss
the instant appeal, and for the imposition of sanctions on the
ground the appeal is frivolous.
DISCUSSION
A. Dismissal Is Appropriate as the Trial Court’s Order
Compelling Arbitration and Its Subsequent Order
Denying Plaintiffs’ Motion to Vacate Are Not
Appealable
Plaintiffs argue the trial court erroneously held it did not
have jurisdiction to vacate its order compelling arbitration
because the plain text of sections 657 and 663 authorizes the
court to do so. Plaintiffs also argue appellate jurisdiction is
proper under the “death knell” doctrine. We disagree.
As an initial matter, we observe there is no valid dispute
over whether plaintiffs could have appealed from the trial court’s
initial March 14, 2019, order compelling arbitration and staying
proceedings. It is well established that “an order to compel
arbitration is an interlocutory order which is appealable only
from the judgment confirming the arbitration award and, in
certain exceptional circumstances, by writ of mandate.” (Mid-
Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454,
citing United Firefighters of Los Angeles v. City of Los Angeles
(1991) 231 Cal.App.3d 1576, 1581-1582; accord, Ashburn v. AIG
Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 94; Peleg v.
Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1437-
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1438; see also Code Civ. Proc., § 1294 [specifying grounds for
appeal from orders concerning arbitration proceedings].) “[N]o
immediate, direct appeal lies from an order compelling
arbitration.” (Abramson v. Juniper Networks, Inc. (2004) 115
Cal.App.4th 638, 648; see also 9 Witkin, Cal. Procedure (5th ed.
2020) Appeal, § 140 [“Order Directing Arbitration: Not
Appealable”].)2
In their opposition to Charter’s motion for sanctions
(discussed post), plaintiffs concede they had no right to appeal
from the trial court’s initial order compelling arbitration. Yet,
plaintiffs somehow believe they can manufacture jurisdiction to
attack an order that has already stayed all proceedings by
bringing a “motion to vacate” that order. They offer three
arguments in support. All are meritless.
First, plaintiffs argue jurisdiction was proper for their
“motion to vacate” under section 657.
Section 657 is entitled “Relief available on motion for new
trial; causes; specification of grounds and reasons; new trial for
insufficient evidence; manner of making and entering order;
2 We decline to assume jurisdiction by exercising our
discretion to treat this appeal as a petition for writ of mandate.
(See Olson v. Cory (1983) 35 Cal.3d 390, 398-401.) First, other
than two stray comments in their opening brief and in their
opposition to Charter’s motion to strike, plaintiffs do not explain
why the circumstances of this case satisfy the criteria for treating
a non-justiciable appeal as a writ. Plaintiffs simply ask that we
do so, in just a few sentences free of supporting legal authority.
Second, plaintiffs have an adequate remedy in a direct appeal
from the judgment. (See Mid-Wilshire Associates v. O’Leary,
supra, 7 Cal.App.4th at p. 1455 [declining to treat an appeal as a
petition for writ of mandate for similar reasons].)
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appeal.” It provides that a “verdict may be vacated and any other
decision may be modified or vacated, in whole or in part, and a
new or further trial granted on all or part of the issues, on the
application of the party aggrieved, for any of the following causes,
materially affecting the substantial rights of such party.” (Ibid.,
italics added.)
Plaintiffs believe this section confers jurisdiction to attack
an order compelling arbitration because it states a motion
brought under section 657 may be used to “modif[y] or vacate[ ]”
“any other decision.” (Italics added.) Section 657 provides seven
grounds for relief, and plaintiffs claim four apply here:
“[i]rregularity in the proceedings of the court, . . . by which [the]
party . . . was prevented from having a fair trial”; “[a]ccident or
surprise, which ordinary prudence could not have guarded
against”; “[n]ewly discovered evidence”; and “[i]nsufficiency of the
evidence to justify the verdict or other decision, or the verdict or
other decision is against law.” (Ibid.)
This argument ignores the plain text of section 657 and is
offered without a scintilla of pertinent legal authority. “Under
section 657 . . . a ‘verdict may be vacated and any other decision
may be modified or vacated’ upon application for a new trial
made by any ‘party aggrieved.’ ” (Ruiz v. Ruiz (1980) 104
Cal.App.3d 374, 378, italics added.) “The decision is the rendition
of judgment by the verdict of the jury or the signed and filed
findings of fact and conclusions of law of the court.” (Ibid., fn.
omitted.) “Until there has been a decision [following trial,] there
is no aggrieved party.” (Ibid.) Section 657 is facially inapplicable
to this case because there has been and will be no trial in this
matter, unless and until the Agreements are invalidated and any
arbitration award not confirmed.
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Second, plaintiffs argue the trial court had jurisdiction to
consider their “motion to vacate” under section 663.
Section 663 is entitled “Setting aside judgment or decree;
entry of new judgment; grounds.” It provides that “[a] judgment
or decree, when based upon a decision by the court, or the special
verdict of a jury, may, upon motion of the party aggrieved, be set
aside and vacated by the same court, and another and different
judgment entered, for either of the following causes, materially
affecting the substantial rights of the party and entitling the
party to a different judgment . . . .” (Ibid., italics added.)
Plaintiffs argue section 663 authorizes their “motion to
vacate” because that section discusses relief from “[a] judgment
or decree.” (Italics added.) They appear to contend the trial
court’s order is a “ ‘decree,’ ” according to plaintiffs, that “falls
within the purview of [section] 663.” This is plaintiffs’ entire
argument. It is similarly unencumbered by citation to any
supporting legal authority.3
This argument fails for the same reason as plaintiffs’
section 657 argument: it ignores the text of section 663. Section
663 indeed applies to a “judgment or decree,” but provides relief
solely for the purpose of “entitling the party to a different
judgment.” (Italics added.) Here, there is no judgment, and no
party is entitled to a different judgment at this stage of the
proceedings. Accordingly, section 663 does not apply. (See
Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203, italics
3 We observe that it would have been within our discretion
to strike plaintiffs’ opening brief for their repeated failure to cite
to pertinent legal authority. (See Cal. Rules of Court, rule
8.204(a)(1)(B) & (e)(2)(B).) We decline to do so, however, in order
to expedite resolution of this matter.
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added [stating that “[t]he procedure [under § 663] appertains
after rendition of a judgment ‘based upon a decision by the court,
or the special verdict of a jury . . . .’ [Citation.] It is designed to
enable speedy rectification of a judgment rendered upon
erroneous application of the law to facts which have been found
by the court or jury or which are otherwise uncontroverted”].)
Third, plaintiffs claim their “motion to vacate” was properly
before the trial court, and that their appeal is properly before us,
under the death knell doctrine.
“The death knell doctrine is a ‘ “tightly defined and
narrow” ’ exception to the one-final-judgment rule, which
generally precludes piecemeal litigation through appeals from
orders that dispose of less than an entire action. [Citation.]”
(Williams v. Impax Laboratories., Inc. (2019) 41 Cal.App.5th
1060, 1066.) The doctrine applies when an order “ ‘effectively
terminates the entire action as to [a] class.’ ” (Ibid.) “The death
knell doctrine permits the appellate court to review an order
denying a motion to certify a class when it is unlikely the case
will proceed as an individual action.” (Szetela v. Discover Bank
(2002) 97 Cal.App.4th 1094, 1098; see also Phillips v. Sprint PCS
(2012) 209 Cal.App.4th 758, 766 [“The death knell doctrine is
applied to orders in class actions that effectively terminate class
claims, such as orders denying class certification or decertifying a
class, . . . while allowing individual claims to persist”], citing In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 757, 762.)
Plaintiff’s reliance on the death knell doctrine is not well
founded. The doctrine generally has not been applied outside of
class action litigation or similar representative actions, and
plaintiffs have not provided any legal authority demonstrating
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that it should be extended to apply to the circumstances of the
present case.4
Plaintiffs’ real complaint appears to be that the AAA’s
refusal to accept arbitration of their consolidated claims against
Charter leaves them “with no recourse to pursue their joint
action.” This is, in part, true: plaintiffs have waived their rights
to proceed against Charter in any “collective” action, and the
AAA is honoring that waiver. But it does not follow that
plaintiffs cannot pursue their claims against Charter. In fact, the
AAA explicitly indicated it would accept an arbitration demand if
it were made by each plaintiff individually: “Should Claimants
desire to proceed, we request that each claimant submit an
individual demand for arbitration . . . .” Plaintiffs are therefore
incorrect that the trial court’s order compelling arbitration was
the “functional equivalent of a ‘death knell’ ” to their claims
because plaintiffs may still arbitrate their claims on an
individual plaintiff basis. (See Nelsen v. Legacy Partners
Residential, Inc. (2012) 207 Cal.App.4th 1115, 1123, fn. omitted
[appellate review under the death knell doctrine is applicable
only when the appellant shows “the trial court’s order makes it
4 Plaintiffs’ assertion that recent cases have expanded the
death knell doctrine to matters other than class actions or
representative claims is wholly unsupported by the cases they
cite. (See Williams v. Impax Laboratories, Inc., supra, 41
Cal.App.5th 1060 [addressing class action]; Miranda v. Anderson
Enterprises, Inc. (2015) 241 Cal.App.4th 196 [addressing
representative action under the Labor Code Private Attorneys
General Act of 2004 (PAGA)]; Munoz v. Chipotle Mexican Grill,
Inc. (2015) 238 Cal.App.4th 291 [addressing both class action and
PAGA claims].)
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impossible or impracticable for [the plaintiff] to proceed with the
action at all”].) The fact that plaintiffs cannot pursue their
claims in their preferred format of a multi-plaintiff suit is not the
same as being left unable to pursue their claims against Charter
at all.
Plaintiffs have appealed from a nonappealable order. As a
consequence, we have no jurisdiction to consider the appeal and
Charter’s motion to dismiss must be granted. (Doe v. United
States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1432).
B. Charter’s Motion for Sanctions
Charter moves this court to impose sanctions on plaintiffs
and their counsel for filing a frivolous appeal, citing California
Rules of Court, rule 8.276(a)(1). This rule authorizes an
appellate court to impose sanctions, including the award or
denial of costs against a party or an attorney for “[t]aking a
frivolous appeal or appealing solely to cause delay.” (Ibid.) In
addition, section 907 provides that “[w]hen it appears to the
reviewing court that the appeal was frivolous or taken solely for
delay, it may add to the costs on appeal such damages as may be
just.” An appeal is frivolous “when it is prosecuted for an
improper motive—to harass the respondent or delay the effect of
an adverse judgment—or when it indisputably has no merit—
when any reasonable attorney would agree that the appeal is
totally and completely without merit.” (In re Marriage of
Flaherty (1982) 31 Cal.3d 637, 650, italics added; see also Diaz v.
Professional Community Management, Inc. (2017) 16 Cal.App.5th
1190, 1216, citing Flaherty, supra, at p. 650.)
In opposition to Charter’s motion, plaintiffs’ counsel
stressed that he was seeking a good faith extension of existing
law by arguing the death knell doctrine should be extended to the
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facts of this case. While this argument did not meet with success,
we do not find that it was frivolous or that the appeal was taken
for purposes of delay. Accordingly, we deny Charter’s motion for
sanctions.
DISPOSITION
Charter’s motion to dismiss is granted and the appeal is
dismissed. Charter is entitled to recover its costs on appeal.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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