AMPARO GASTELUM, Plaintiff and Respondent, v. REMAX INTERNATIONAL, INC., et al., Defendants and Appellants.
No. B263213
Second Dist., Div. Five
Feb. 11, 2016
244 Cal. App. 4th 1016
Lytton, Williams, Messina & Hankin and John A. Messina, Jr., for Defendants and Appellants.
OPINION
TURNER, P. J.—
I. INTRODUCTION
Defendants, Remax International, Inc., and Jose Garcia-Yanez, appeal from an order lifting a litigation stay. Plaintiff, Amparo Gastelum, filed a complaint against defendants regarding her employment. Defendants moved to compel arbitration. The trial court granted the motion to compel arbitration of Remax International, Inc., and stayed the litigation in the judicial forum pursuant to
Plaintiff initiated the arbitration proceeding. Plaintiff requested Remax International, Inc., pay the arbitration filing fee pursuant to Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113 [99 Cal.Rptr.2d 745, 6 P.3d 669] (Armendariz). (See Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 400 [183 Cal.Rptr.3d 17].) Remax International, Inc., through its counsel, refused to pay the arbitration filing fee. The arbitration provider dismissed the arbitral proceeding after no arbitration costs were paid.
Plaintiff then moved that the trial court lift its prior order staying the litigation. Defendants filed no contemporary motion or petition seeking an order compelling resumption of the arbitration proceeding. The trial court granted plaintiff‘s motion and lifted the litigation stay. Defendants then appealed the order lifting the litigation stay. We hold defendants are appealing from a nonappealable order. Thus, the appeal must be dismissed.
II. BACKGROUND
A. Plaintiff‘s Complaint
On July 17, 2013, plaintiff filed her complaint against defendants. Plaintiff alleges the following. Remax International, Inc., is a California corporation.
B. Defendants’ Motion to Compel Arbitration and Trial Court‘s Order Granting Motion
On December 6, 2013, defendants moved to compel arbitration. Defendants relied on an arbitration clause in an agreement entitled “INDEPENDENT CONTRACTOR AGREEMENT” between plaintiff and Remax International, Inc. The arbitration clause at subparagraph 9.B provides in part:
“Contractor [plaintiff] hereby agrees to cooperate with Broker [Remax] by supporting and fully participating in all efforts to resolve disputes, complaints and other problems (hereafter collectively called ‘Dispute(s)‘) that arise: (i) out of this Agreement; (ii) out of Contractor‘s conduct, activities or services as a real estate licensee; (iii) out of any transaction in which Contractor is involved, or (iv) out of Contractor‘s relationship with the RE/MAX Network or any RE/MAX affiliate . . . . Contractor agrees to cooperate in the resolution of such Disputes through mediation, and if not successfully resolved, then through binding arbitration in accordance with the provisions of Subparagraph 9.C. below.”
Subparagraph 9.C provides:
“Disputes shall be submitted to a mediation and arbitration system mutually acceptable to the parties to the Dispute. If the parties cannot agree on a mediation and arbitration system, then the Dispute shall be submitted to the American Arbitration Association . . . for mediation and, if unsuccessful, for binding arbitration, in accordance with [the American Arbitration Association‘s] Commercial Mediation Rules or Commercial Arbitration Rules, as applicable.”
In their motion to compel arbitration, the following appears, ” ‘Defendants recognize that the Arbitration Agreements are employer-promulgated and therefore do, in fact, intend to pay the costs of arbitration. ’ ”
On September 24, 2014, defendants’ motion to compel arbitration was granted in part. The trial court found Remax International, Inc., and plaintiff had agreed to arbitrate the claims raised in her complaint. However, the trial
C. Arbitration Procedural History
On December 2, 2014, plaintiff submitted the matter for arbitration before the American Arbitration Association. An American Arbitration Association staffer, Adam Schoneck, sent a notice to the parties on December 17, 2014. Mr. Schoneck stated the American Arbitration Association could not yet determine whether plaintiff was an employee or an independent contractor; therefore, Mr. Schoneck indicated the matter would proceed under the Commercial Arbitration Rules; and the issue of whether plaintiff was an employee or an independent contractor was preserved for review by the arbitrator after payment of the arbitration fees. Pursuant to the Commercial Arbitration Rules, Mr. Schoneck, on behalf of the American Arbitration Association, assessed a $7,000 filing fee because plaintiff‘s alleged damages are between $1 and $10 million. Plaintiff had already paid $200. Mr. Schoneck indicated that if the remaining $6,800 filing fee was not paid, the American Arbitration Association would administratively close the arbitration proceeding.
Plaintiff was represented by Justin Silverman. On December 17, 2014, Mr. Silverman sent an e-mail to counsel for Remax International, Inc., requesting it pay the filing fee. Mr. Silverman noted the trial court‘s September 24, 2014 order partially granting the motion to compel arbitration expressly relied on Armendariz which held in part, “[A] mandatory employment arbitration agreement that contains within its scope the arbitration of [Fair Employment and Housing Act] claims impliedly obliges the employer to pay all types of costs that are unique to arbitration.” (Armendariz, supra, 24 Cal.4th at p. 113; see Cruise v. Kroger Co., supra, 233 Cal.App.4th at p. 400.) Mr. Silverman informed defense counsel that Remax International, Inc., was required to pay the arbitration filing fee here. Remax International, Inc., did not pay the filing fee. The American Arbitration Association
D. Plaintiff‘s Motion to Lift Stay on Litigation and Trial Court‘s Order Granting Motion
On February 3, 2015, plaintiff moved to lift the stay on litigation. Plaintiff argued defendants’ conduct by failing to pay arbitration filing fees terminated the arbitration proceeding. On March 3, 2015, the trial court granted plaintiff‘s motion and ordered the litigation stay lifted. This appeal by defendants followed.
III. DISCUSSION
The right to appeal is statutory. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [118 Cal.Rptr.3d 571, 243 P.3d 575]; Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 665 [54 Cal.Rptr.3d 752, 151 P.3d 1166]; Wells Fargo Bank, N.A. v. The Best Service Co., Inc. (2014) 232 Cal.App.4th 650, 652 [181 Cal.Rptr.3d 597] (Wells Fargo).) The general list of appealable civil judgments and orders is codified in
Defendants rely upon Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 96-100 [284 Cal.Rptr. 255] (Henry) to support their argument the order at issue is appealable. At the outset, we emphasize there is no pending arbitration. Nor has either defendant filed a petition or motion to compel the American Arbitration Association to reopen arbitral proceedings. That being said, we turn to Henry. In Henry, while an action was pending, the defendant initiated an arbitration before the American Arbitration Association. (Id. at p. 98.) The plaintiff then filed a motion to stay the arbitration. (Ibid.) The trial court granted the plaintiff‘s motion to stay the arbitration, which was pending before the American Arbitration Association. (Ibid.) The defendant appealed from the order staying the American Arbitration Association arbitration of the plaintiff‘s claims during the pendency of the litigation. (Id. at p. 96.) The plaintiff argued the appeal must be dismissed as it was from a nonappealable order. (Id. at p. 98.) The Court of Appeal rejected the plaintiff‘s argument. (Id. at p. 97Id. at p. 99.) Thus, the Court of Appeal concluded the order staying the pending American Arbitration Association arbitration was appealable under
The order appealed from here is materially different from the one in Henry. In Henry, an order was issued that stayed a pending arbitration. The entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.”
An order granting a motion to compel arbitration is not appealable under California law. (Reyes v. Macy‘s Inc. (2011) 202 Cal.App.4th 1119, 1122 [135 Cal.Rptr.3d 832]; Muao v. Grosvenor Properties, Ltd. (2002) 99 Cal.App.4th 1085, 1088-1089 [122 Cal.Rptr.2d 131].) As noted, Mr. Garcia-Yanez never appealed the denial of his motion to compel arbitration. Defendants have identified no other appealable order or judgment.
We have previously held that an appeal from a litigation stay order that is unaccompanied by a motion or petition to compel arbitration is not appealable. We explained, “[N]othing in
Finally, an order lifting a litigation stay is not controlled by the analysis in Henry. As noted, Henry held an order staying arbitration is merely the “flip side” of one refusing to compel arbitration. (Henry v. Alcove Investment, Inc., supra, 233 Cal.App.3d at p. 100.) The order lifting the litigation stay is not, to use the metaphor in Henry, the “flip side” of an order denying a petition to compel arbitration under our circumstances. Because the order lifting the litigation stay is not appealable, we are required to dismiss the appeal. (Baker v. Castaldi (2015) 235 Cal.App.4th 218, 222 [185 Cal.Rptr.3d 17]; Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297 [50 Cal.Rptr.2d 493].) As the present case does not involve an appealable order and must be dismissed, we need not address the parties’ other contentions.
The appeal is dismissed. Plaintiff, Amparo Gastelum, may recover her appellate costs from defendants, Remax International, Inc., and Jose Garcia-Yanez.
Kriegler, J., and Kumar, J.,* concurred.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.