Thompson v. SF Markets CA1/5 ( 2024 )

Filed 9/23/24 Thompson v. SF Markets CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
MARVIN THOMPSON,
Plaintiff and Respondent,
A167659
v.
SF MARKETS, LLC, (Alameda County
Super. Ct. No.
Defendant and Appellant.
22CV016673)
Defendant SF Markets, LLC doing business as Sprouts Farmers
Market (SF Markets) appeals from an order denying its motion to compel
arbitration of claims asserted by plaintiff and respondent Marvin Thompson.
The trial court ruled that SF Markets breached the parties’ arbitration
agreement and waived its right to compel arbitration under Code of Civil
Procedure section 1281.981 because it did not pay its share of the arbitration
initiation fees by the statutory deadline. In so ruling, the court rejected SF
Markets’ argument that its obligation to pay the fees had not come due,
concluding that Thompson substantially complied with the requirements for
initiating the arbitration. On appeal, SF Markets contends the court erred,
1 Unless otherwise indicated, all statutory references are to the Code of
Civil Procedure.
1
while Thompson argues for the first time that SF Markets’ payment of the
fees, although late, waived any challenge to the way Thompson had initiated
the arbitration. Because Thompson did not serve the arbitration demand in
the manner required by the parties’ arbitration agreement and because SF
Markets did not waive this requirement by paying the arbitration fees, we
will reverse the order and direct the court to enter a new order compelling
arbitration pursuant to the agreement.
I. FACTS AND PROCEDURAL HISTORY
A. Arbitration Agreement
The parties entered into a “Mutual Binding Arbitration Agreement”
(Arbitration Agreement or Agreement) in connection with Thompson’s
employment with SF Markets. The third paragraph of the Agreement
required Thompson to submit all “claim[s]” (as defined) to final and binding
arbitration administered by Judicial Arbitration and Mediation Services
(JAMS) in accordance with the JAMS Employment Arbitration Rules &
Procedures (JAMS Procedures).
The 10th paragraph of the Arbitration Agreement, titled “Initiation of
Arbitration Process,” sets forth the procedure for commencing arbitration:
“Arbitration shall be initiated upon the express written notice of either party.
Written notice of Team Member’s claim shall be mailed by certified or
registered mail, return receipt requested, and by U.S. Mail, to SFM, LLC,
5455 E. High Street, Suite 111, Phoenix, AZ 85054, attn: Labor &
Employment Counsel.” (Italics added.) Service of the notice would be
“deemed effective on the earlier of the date the Team Member or [SF
Markets] signs the return receipt or three days after the notice is sent by
regular mail.” The Agreement further provided that it was “governed by the
Federal Arbitration Act, 9 U.S.C. § 1 et seq.”
2
B. Thompson’s Initial Class Action
Notwithstanding the Arbitration Agreement, Thompson filed a putative
class action against SF Markets in Alameda County Superior Court
(Thompson v. S.F. Markets, LLC (Super. Ct. Alameda County, 2022, No.
RG21102471)) (Thompson I), alleging claims for failure to provide meal
periods and rest breaks, failure to pay hourly wages and overtime, violation
of Labor Code section 227.3, inaccurate wage statements, failure to timely
pay final wages, and unfair competition.
In response, SF Markets moved to compel arbitration of Thompson’s
individual claims and to dismiss his class claims. Thompson did not oppose,
and the trial court granted the motion and referred Thompson’s individual
claims “to binding arbitration, pursuant to the terms of the parties’ arbitration
agreement.” (Italics added.) The court also stayed the litigation pending
completion of the arbitration.
1. Thompson Purports to Initiate the Arbitration
In June 2022, approximately eight months after the trial court ordered
Thompson’s claims to arbitration, Thompson used JAMS’ online case
management platform (JAMS Access) to submit to JAMS a Demand for
Arbitration (Demand) of his individual claims.
On June 16, 2022, Thompson emailed a copy of the Demand to the
attorneys who had represented SF Markets in Thompson I. However, he did
not serve it “by certified or registered mail, return receipt requested, and by
U.S. Mail, to SFM, LLC, 5455 E. High Street, Suite 111, Phoenix, AZ 85054,
attn: Labor & Employment Counsel” as required by the Arbitration
Agreement.
Thompson nonetheless provided JAMS with a proof of service of the
arbitration demand, representing that the manner of service was “[b]ased on
3
a court order or an agreement of the parties to accept service by electronic
transmission.” To the contrary, neither the trial court’s order nor SF
Markets had authorized electronic service of the Demand.
On June 17, 2022, JAMS emailed to SF Markets’ attorneys a “Notice of
Intent to Initiate Arbitration” letter, along with an invoice (identified as a
Deposit Request) for a non-refundable filing fee in the amount of $1,750 “due
upon receipt.” The Deposit Request was “[b]ill[ed] [t]o” SF Markets’ counsel;
it was not billed or emailed to SF Markets.
On July 28, 2022, SF Markets’ attorneys paid the Deposit Request 41
days after it issued. SF Markets represents in its opening brief that the
incorrect payor information on the Deposit Request accounted for payment
not being made until July 28; the page it cites in the record, however, does
not say this.
On August 10, 2022, having seen on JAMS’ case management website
that SF Markets had paid the fees, Thompson’s lawyer emailed JAMS and SF
Markets’ attorneys to find out the date of payment. SF Markets’ attorneys
responded to Thompson’s counsel by email the next day, complaining that
Thompson’s arbitration demand had not complied with the requirement in
the Arbitration Agreement to provide “written notice by certified or
registered mail, return receipt requested, and by U.S. mail, to SFM, LLC
5455 E. High Street, Suite 111, Phoenix, AZ 85054” and objecting to JAMS’
issuance of the Deposit Request in light of the improper service. SF Markets
requested that JAMS “withdraw the previously issued invoice, and re-issue
only upon proof of service in compliance with the arbitration agreement[’s]
notice provisions.” Meanwhile, Thompson’s lawyers told JAMS that SF
Markets had waived arbitration by failing to pay the filing fees on time,
4
asked JAMS to stay the arbitration proceedings, and said Thompson would
“move the court to set aside the arbitration order.”
On August 22, 2022, JAMS confirmed that it received SF Markets’
payment on July 28, 2022. JAMS paused its administration of the
arbitration pending the parties’ agreement or court order.
That same day, instead of moving in Thompson I to set aside the
arbitration order as they said they would, Thompson’s lawyers filed a new
and separate putative class action in Alameda County Superior Court
Thompson v. S.F. Markets (Super Ct. Alameda County, 2022, No.
22CV016673) (Thompson II).2
2. SF Markets Moves to Compel Compliance in Thompson I
SF Markets filed a motion in Thompson I to compel Thompson’s
compliance with the trial court’s earlier order to arbitrate. SF Markets
argued that Thompson had not properly initiated arbitration, so JAMS’
invoice was premature, the fees were not yet due, and SF Markets had not
waived arbitration. Thompson opposed, arguing that rule 4.2 of the ABA
Model Rules of Professional Conduct (ABA Model Rule 4.2) and rule 4.2 of the
California Rules of Professional Conduct (CRPC 4.2) prevented Thompson’s
counsel from sending the arbitration demand directly to SF Markets, so he
served the demand on SF Markets’ lawyers by the email method they
2 Filing a duplicate lawsuit was improper. Although section 1281.97
allows an employee to commence litigation if the employer does not timely
pay its arbitration fees, it does not entitle the employee to file a second
lawsuit (and incur another filing fee for the client) to assert claims that are
already the subject of existing litigation and the subject of an order
compelling their arbitration. (See Williams v. West Coast Hospitals, Inc.
(2022) 86 Cal.App.5th 1054, 1066 (Williams).) The parties do not address
this issue, and we need not analyze it further to resolve the appeal.
5
established for serving other documents in Thompson I. In a reply brief, SF
Markets disagreed.
The trial court denied SF Markets’ motion, stating, “It appears to this
court that [Thompson] has complied with the court’s order.”
C. SF Markets Moves to Compel Arbitration in Thompson II
Following the denial of its motion in Thompson I, SF Markets filed a
motion to compel arbitration in Thompson II. SF Markets again argued that
Thompson had not properly initiated arbitration, so its failure to pay the
arbitration fees on time was immaterial. It also argued that section 1281.97
is preempted by the FAA.
Thompson opposed the motion and again argued, as relevant here, that
the ABA Model Rules and the CRPC prevented counsel from sending the
arbitration demand directly to SF Markets in compliance with the
Arbitration Agreement. Thompson further argued that the FAA did not
preempt section 1281.97.
The trial court denied the motion. In its written order, the court stated
that it was “not reconsidering its finding that the arbitration is valid” but
was considering whether the agreement should be rescinded. The court
concluded that SF Markets “waived its rights to arbitrate this dispute as it
materially breached the arbitration agreement by failing to pay the filing fees
required to continue the arbitration within thirty days after the due date.”
The trial court further ruled that SF Markets could not “resist this
conclusion by claiming that [Thompson] did not properly initiate arbitration
because ‘[he failed to serve the arbitration demand] by certified or registered
mail, return receipt requested, or by U.S. mail,’ ” to the address stated in the
Arbitration Agreement. The court reasoned: “[Thompson] substantially
complied with the arbitration agreement’s requirements to ensure that [SF
6
Markets] had notice of the demand for arbitration. Under the facts of this
case, [Thompson’s] partial performance was sufficient to initiate arbitration.
[Citation.] Moreover, there is no doubt that [SF Markets] received timely
notice of the initiation of arbitration through the notice provided to its
counsel, a notice that the prior judge found sufficient to comply with his order
to submit this matter to arbitration.”
SF Markets timely appealed (see § 1294).
II. DISCUSSION
Section 1281.97, subdivision (a)(1) provides that the initial arbitration
fees must be paid within 30 days after they become due, or the party who
drafted the arbitration agreement will be deemed to have waived its right to
compel arbitration. The subdivision reads: “In an employment or consumer
arbitration that requires, either expressly or through application of state or
federal law or the rules of the arbitration provider, the drafting party to pay
certain fees and costs before the arbitration can proceed, if the fees or costs to
initiate an arbitration proceeding are not paid within 30 days after the due
date the drafting party is in material breach of the arbitration agreement, is
in default of the arbitration, and waives its right to compel arbitration under
Section 1281.2.” (Italics added.)
The obligation to pay the initial arbitration fees and the date for
calculating the payment deadline are triggered by the arbitrator’s issuance of
an invoice. (§ 1281.97, subd. (a)(2).) The invoice cannot be issued, however,
until the claimant meets the “filing requirements necessary to initiate an
arbitration.” Specifically, section 1281.97, subdivision (a)(2) states: “After an
employee or consumer meets the filing requirements necessary to initiate an
arbitration, the arbitration provider shall immediately provide an invoice for
any fees and costs required before the arbitration can proceed to all of the
7
parties to the arbitration. . . . To avoid delay, absent an express provision in
the arbitration agreement stating the number of days in which the parties to
the arbitration must pay any required fees or costs, the arbitration provider
shall issue all invoices to the parties as due upon receipt.” (Italics added.)
If the initial arbitration fees are not paid within the 30 days, and the
drafter of the arbitration agreement is deemed to have waived its right to
arbitrate, the claimant may either “[w]ithdraw the claim from arbitration
and proceed in a court of appropriate jurisdiction” or “[c]ompel arbitration in
which the drafting party shall pay reasonable attorney’s fees and costs
related to the arbitration.” (§ 1281.97, subd. (b).)3
Strictly enforcing section 1281.97 (Espinoza, supra, 83 Cal.App.5th at
p. 775), we find that SF Markets did not waive its right to arbitrate by failing
to timely pay the initial arbitration fee because: (1) Thompson did not serve
his arbitration demand in the manner required by the Arbitration
Agreement; (2) Thompson did not substantially comply with the Agreement’s
service requirement; and (3) nothing prevented Thompson from complying
with that requirement. We also find that SF Markets did not waive the
method of service required by the Agreement by paying the fee late.
3
The trial court did not decide SF Markets’ motion under section
1281.97 but under section 1281.98, which imposes a similar 30-day deadline
to pay “during the pendency of an arbitration proceeding” any fees or costs
invoiced “for the arbitration proceeding to continue.” (§ 1281.98, subd. (a)(1),
(2).) But because the payment pertained to the arbitration provider’s initial
invoice, the applicable statute was section 1281.97. (Espinoza v. Superior
Court (2022) 83 Cal.App.5th 761, 775 (Espinoza); Cvejic v. Skyview Capital,
LLC (2023) 92 Cal.App.5th 1073, 1077; Williams, supra, 86 Cal.App.5th at
pp. 1065―1066.) The parties’ briefs refer only to section 1281.97, and we will
analyze the matter under that statute. (See Williams, at pp. 1065―1066 [the
procedures and remedies under section 1281.97 and section 1281.98 are
“ ‘largely parallel,’ however, and require no different analysis”].)
8
A. Thompson Did Not Properly Initiate Arbitration
Because Thompson did not serve his arbitration demand by mail to SF
Markets at its office address as required by the Arbitration Agreement, SF
Markets had no obligation to pay any arbitration fees under section 1281.97.
Under section 1281.97, SF Markets’ statutory obligation to pay fees
within 30 days would begin upon the issuance of the arbitrator’s invoice after
Thompson met the “filing requirements necessary to initiate an arbitration.”
(§ 1281.97, subd. (a)(2).) Section 1281.97 does not define the “filing
requirements necessary to initiate an arbitration.” But it is a “ ‘fundamental
principle that arbitration is a matter of contract,’ ” and arbitration
agreements must be enforced “according to their terms.” (AT&T Mobility
LLC v. Concepcion (2011) 563 U.S. 333, 339.) Therefore, in this case, the
“filing requirements necessary to initiate an arbitration” must be found in the
Arbitration Agreement and the JAMS Procedures it references.
Section 3 of the Arbitration Agreement mandated that claims “shall” be
submitted to arbitration in accordance with the JAMS Procedures. Those
Procedures condition the initiation of arbitration on the employee filing a
proof of service of the arbitration demand. For example, the JAMS forms
explain that a “Demand is considered submitted for JAMS’ purposes when
the following items have been received by JAMS: [¶] . . . Demand for
Arbitration form or the equivalent; [¶] . . . Proof of service of the Demand on
all other Parties; [¶] . . . Copy of the entire contract that contains the
arbitration agreement, Court Order (if applicable), and/or Stipulation (if
applicable); [¶] . . . Applicable Filing Fee.” (Italics added.) Rule 5 of the
JAMS Procedures, titled “Commencing an Arbitration,” states that the
requirements are met when JAMS receives, among other things, “evidence
that the Demand for Arbitration has been served on all Parties.”
9
Moreover, the manner of service must comply with the parties’
arbitration agreement. As JAMS instructs regarding the content of the proof
of service, the parties should “check the terms of their arbitration contract or
any applicable law.” (Italics added.)4 Here, paragraph 10 of the Arbitration
Agreement—titled “Initiation of Arbitration Process”—specified that “express
written notice” of the arbitration “shall be mailed by certified or registered
mail, return receipt requested, and by U.S. Mail, to SFM, LLC, 5455 E. High
Street, Suite 111, Phoenix, AZ 85054, attn: Labor & Employment Counsel.”
(Italics added.) Service of the arbitration notice does not take effect unless a
return receipt is signed or three days after the notice was sent by regular
mail.
In short, to meet the “filing requirements necessary to initiate an
arbitration” (§ 1281.97, subd. (a)(2)), Thompson had to provide JAMS with
proof that the Demand was served by certified or registered mail with return
receipt requested, as well as by U.S. mail, to the address indicated in the
Arbitration Agreement.
Here, Thompson did not send his Demand by certified or registered
mail with a return receipt requested. He did not serve it by U.S. mail. He
did not send it to the party or address required by the Arbitration Agreement.
He therefore did not properly initiate the arbitration under the Agreement,
and service of the Demand never became effective. The proof of service
Thompson sent to JAMS was not based on valid service of the Demand or
proper initiation of arbitration under the parties’ Arbitration Agreement.
4
SF Markets filed a request for judicial notice of a bill analysis related to
section 1281.97 and certain JAMS forms. Although the material was not
before the trial court when it ruled on SF Markets’ motion, Thompson does
not object to the request and his respondent’s brief cites to some of the JAMS
materials. We therefore grant the request.
10
Accordingly, Thompson did not meet the “filing requirements necessary to
initiate an arbitration” under section 1281.97. (See Luafau v. Affiliated
Computer Servs. (N.D. Cal. Sept. 12, 2006) 2006 WL 2619365, at *2–3 [where
the parties’ “Dispute Resolution Procedure” (DRP) required that the
employee initiate arbitration by submitting a claim to the DRP
administrator, “[t]he fact that no other procedure is specified means that no
other procedure is permissible,” and the plaintiff’s failure to submit the claim
meant the defendants were not in default for failing to pay the arbitrator’s
filing fee].) And because Thompson did not meet the “filing requirements
necessary to initiate an arbitration” under section 1281.97, JAMS’ invoice
was not authorized by that statute, and SF Markets’ failure to pay by the
statutory deadline did not waive its right to arbitrate. The trial court
therefore erred in denying SF Markets’ motion to compel arbitration.
B. No Substantial Compliance
The trial court did not find—and Thompson does not contend—that
Thompson did what he was supposed to do under the Arbitration Agreement
to serve the Demand and initiate the arbitration process. Instead, the court
ruled that Thompson’s “substantial[]” compliance with the Agreement’s
service requirements was enough. Thompson did not focus on a substantial
compliance theory in its briefs opposing SF Markets’ motion to compel, and
his respondent’s brief paid little attention to the court’s theory, venturing
instead into a new and different theory of waiver (which we reject later in
this opinion).
In any event, even assuming for purposes of argument that the
substantial compliance doctrine applies here, the evidence before the trial
court did not support a conclusion that Thompson substantially complied
with the requirements for initiating arbitration. Thompson provides no
11
authority that an obligation to serve an arbitration demand by certified or
registered mail with return receipt requested, as well as by regular mail, to a
party at a designated address, is substantially performed by sending it by
email to someone else at a different address. The service requirements in the
Arbitration Agreement were clear, simple, and not burdensome. Thompson’s
decision to do something entirely different did not constitute substantial
compliance. Indeed, SF Markets presumably required that all arbitration
demands be sent by certified or registered mail to its inhouse “Labor &
Employment Counsel” to ensure that a person designated by SF Markets to
handle those demands actually received the demand in a timely fashion and
could ensure compliance with any obligations triggered by that demand. (See
Manderson-Saleh v. Regents of University of California (2021) 60 Cal.App.5th
674, 701 [“substantial compliance doctrine . . . is ‘commonly understood to
mean “compliance with the substantial or essential requirements of
something (as a statute or contract) that satisfies its purpose or objective
even though its formal requirements are not complied with” ’ ”].)
C. Thompson’s Ethics Argument
Thompson argues that CRPC 4.2 and ABA Model Rule 4.2, which
generally preclude a lawyer from communicating with persons known to be
represented by counsel, barred his lawyers from sending the Demand in the
manner required by the Arbitration Agreement. As a result, he argues, his
lawyers properly emailed the Demand to SF Markets’ counsel just as they
served other documents by email in Thompson I. The trial court did not
embrace this argument, and neither do we.
CRPC 4.2(a) provides: “In representing a client, a lawyer shall not
communicate directly or indirectly about the subject of the representation
with a person the lawyer knows to be represented by another lawyer in the
12
matter, unless the lawyer has the consent of the other lawyer.” However,
CRPC 4.2(c) states that this rule does not prohibit “communications
otherwise authorized by law or a court order.” ABA Model Rule 4.2 is
essentially identical.
Nothing in CRPC 4.2 or ABA Model Rule 4.2 prohibited service of the
Demand in accordance with the terms of the Arbitration Agreement. The
rules govern a lawyer’s communications with a represented person;
Thompson, who is not a lawyer, could have served the Demand directly on SF
Markets.
Furthermore, a lawyer’s service of a legal notice consistent with the
terms of the parties’ contract—particularly where, as here, a court has
ordered arbitration to be commenced in accord with that contract—falls
within the exception under CRPC 4.2(c) for communications “authorized by
law or a court order.”
In addition, the rule against lawyers communicating with a
represented person does not apply when the lawyer has the consent of the
person’s lawyer. (CRPC, rule 4.2.) Thompson’s counsel could have asked SF
Markets’ lawyers for permission to serve SF Markets consistent with the
terms of the Arbitration Agreement (or for SF Markets’ lawyers to accept
service on their client’s behalf). For all these reasons, Thompson’s urging
that his lawyers’ ethical obligations made it impossible to comply with the
Arbitration Agreement is meritless.
Finally, even if the ethics rules did justify service of the Demand upon
SF Markets’ attorneys, Thompson’s service of the Demand by email rather
than registered or certified mail did not suffice. Thompson argues that
counsel used email to serve each other with documents they filed with the
trial court in Thompson I, pointing to proofs of service of court filings such as
13
a case management statement. But that argument is unpersuasive for two
reasons. First, service of routine court documents is not the same as service
of an arbitration demand; the parties’ only agreement regarding service of
the Demand was in the Arbitration Agreement, which did not allow email
service. Second, as a matter of law, party agreements to email service do not
extend to documents that are to be served by certified or registered mail. (Cal.
Rules of Court, rule 8.78(a)(1)(B) [party agreement for electronic service
applies only to documents authorized to be served by mail, express mail,
overnight delivery, or fax transmission]; § 1010.6, subd. (a)(2) [“If a document
is required to be served by certified or registered mail, electronic service of
the document is not authorized,” italics added)].)
Accordingly, the trial court erred in denying SF Markets’ motion to
compel arbitration.
D. Thompson’s New Waiver Argument
Thompson argues that a party can waive a term of an arbitration
agreement, such as the method of service for an arbitration demand, and that
waiver may occur by conduct. (See Morgan v. Sundance, Inc. (2022) 596 U.S.
411, 418; Medico-Dental Bldg. Co. v. Horton & Converse (1942) 21 Cal.2d 411,
432.) On this basis, he contends that SF Markets’ payment of the invoiced
fees without objecting to the invoice or Thompson’s method of service waived
its right to challenge the way Thompson served the Demand. The argument
is unavailing.
In the first place, Thompson did not raise this argument in the trial
court. As a result, the court had no opportunity to consider the argument,
and SF Markets had no opportunity to rebut it. Furthermore, as Thompson
acknowledges, waiver involves significant factual issues. (See DRG/Beverly
Hills, Ltd. v. Chopstix Dim Sum Café & Takeout III, Ltd. (1994) 30
14
Cal.App.4th 54, 60 [waiver requires clear and convincing evidence of an
“intentional relinquishment of a known right after knowledge of the facts”].)
The court had no opportunity to make findings on those issues.
Thompson claims that the trial court did make “a factual
determination that [SF Markets] waived its contractual right to enforce strict
compliance with the provisions in the arbitration agreement with respect to
initiating an arbitration.” But that is not true. The court’s order does not
mention the idea of SF Markets waiving its right to challenge how Thompson
initiated arbitration by paying the arbitration fees. Instead, it ruled that SF
Markets “waived its rights to arbitrate this dispute”—the substantive claims
Thompson brought in his complaint—by failing to pay the filing fees within
30 days. It rejected SF Markets’ argument regarding Thompson’s inadequate
attempt to initiate arbitration not on the ground of waiver, but on the ground
that Thompson had substantially performed.
Finally, we find no evidence that SF Markets intentionally relinquished
a known right to argue that Thompson failed to properly initiate arbitration
if Thompson challenged the timing of its payment. To the contrary, just one
day after Thompson brought the tardiness of the payment to SF Markets’
attention, SF Markets’ counsel, “specially appearing on behalf of [SF
Markets],” responded that Thompson “had failed to properly initiate
arbitration.” SF Markets’ counsel explained: “Pursuant to the Arbitration
Agreement, in order to initiate arbitration [Thompson] was required to give
written notice by certified or registered mail, return receipt requested, and by
U.S. mail, to SFM, LLC 5455 E. High Street, Suite 111, Phoenix, AZ 85054.”
Thompson cites no case holding that the mere payment of arbitration fees,
without more, should be deemed a waiver of the right to contend that
arbitration had not been properly commenced.
15
We will reverse the order denying SF Markets’ motion to compel.5
III. DISPOSITION
The order is reversed. The trial court is directed to enter a new order
compelling arbitration pursuant to the parties’ Arbitration Agreement.
CHOU, J.
We concur.
JACKSON, P.J.
SIMONS, J.
(Thompson v. SF Markets A167659)
5
Because we reverse the trial court’s decision on the ground that SF
Markets did not waive its right to arbitrate under section 1281.97, we need
not and do not address SF Markets’ alternative argument that section
1281.97 is preempted by the FAA.
16