Zhang v. Super. Ct.

Filed 11/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JINSHU “JOHN” ZHANG, B314386
Petitioner,
Los Angeles County
v. Super. Ct. No. 21STCV19442
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
DENTONS US LLP et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. David Sotelo,
Judge. Petition denied.
Murphy Rosen, Paul D. Murphy and Daniel N. Csillag for
Petitioner.
No appearance for Respondent.
Gibson, Dunn & Crutcher, Richard J. Doren, James P.
Fogelman, Kahn A. Scolnick, Dione Garlick and Daniel R. Adler
for Real Parties in Interest.
________________________
SUMMARY
Petitioner Jinshu “John” Zhang was an equity partner in
Dentons U.S. LLP (real party in interest or Dentons), a major law
firm with offices throughout the United States. A dispute arose
between them over a multimillion dollar contingency fee from a
client whom petitioner brought to the firm. The partnership
agreement contains a clause providing for arbitration of all
disputes in Chicago or New York. The partnership agreement
also contains a clause delegating all questions of arbitrability to
the arbitrator (delegation clause).
Dentons terminated petitioner for cause, asserting a breach
of fiduciary duty, and initiated an arbitration in New York.
Petitioner then sued Dentons for wrongful termination and other
causes of action in Los Angeles Superior Court. Petitioner
obtained a temporary restraining order (TRO) and then a
preliminary injunction, enjoining the New York arbitration until
the court could decide whether there was a clear and
unmistakable delegation clause.
After the TRO was issued, Dentons filed a motion under
Code of Civil Procedure section 1281.4, seeking a mandatory stay
of the case based on its motion to compel arbitration that was
then pending in a New York court, which the New York court
later granted. In opposition, petitioner argued he was Dentons’s
employee, and Labor Code section 925 “render[ed] the courts of
New York incompetent to rule on Dentons’ motion to compel
arbitration.” Section 925 prohibits an employer from requiring
an employee who resides and works in California to agree to a
provision requiring the employee to adjudicate outside California
a claim arising in California.
2
Judge Sotelo granted Dentons’s motion to stay petitioner’s
action in superior court pending completion of arbitration in New
York. The court ruled the arbitration agreement clearly and
unmistakably delegated arbitrability issues to the arbitrator,
including the applicability of Labor Code section 925 to the
dispute.
Petitioner sought a writ of mandate, which we denied. The
Supreme Court granted review and transferred the case back to
us, directing us to issue an order to show cause. We did so, and
now again deny the petition. We agree with the trial court that
the parties delegated questions of arbitrability to the arbitrator.
The arbitrability issues in this case include whether petitioner is
an employee who may invoke Labor Code section 925 and require
the merits of the dispute to be resolved in California instead of
New York. We reject petitioner’s contention that, because he
invoked section 925, the New York court is not “a court of
competent jurisdiction” (Code Civ. Proc., § 1281.4) that can order
arbitration of this dispute.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background Facts
Petitioner was a “full interest partner” in Dentons who
worked and resided in California. He is a signatory to Dentons’s
partnership agreement. The partnership agreement has a broad
arbitration clause. It covers “all disputes relating to the validity,
breach, interpretation or enforcement of this Agreement, as well
as all disputes of any kind between or among any of the Partners
and/or the Partnership relating to the Partnership and/or the
Business, including statutory claims of any kind . . . .” Those
disputes “shall be resolved in accordance with the CPR Rules of
Non-Administered Arbitration,” and the place of arbitration
3
“shall be either Chicago, Illinois or New York, New York.” (CPR
is the International Institute for Conflict Prevention &
Resolution.) The CPR Rules also authorize the arbitrator to
decide issues of arbitrability.
In 2018, petitioner brought a client to Dentons whom the
firm agreed to represent for a fee contingent on the outcome.
Petitioner was principally responsible for the matter and resolved
it successfully in February 2021, entitling Dentons to the
contingency fee. The fee could not be collected until a later date
when certain transfer restrictions were to be removed and
Dentons’s exact percentages would become ascertainable. The fee
is substantial; according to petitioner’s complaint, when collected
“it will be the single biggest contingency fee Dentons has ever
earned.”
Petitioner, whose compensation was determined by the
Dentons board, believed the contingency fee “presented an
opportunity to negotiate his compensation as it related to the
Contingency Fee,” but Dentons’s chief executive officer, Michael
McNamara, told him he would have to wait to negotiate his
compensation until the Dentons board undertook its annual
compensation review.
Matters thereafter deteriorated. Dentons asserts petitioner
demanded that Dentons guarantee him 90 percent of the
contingency fee and place him on the board, and when Dentons
declined, petitioner “covertly went to the Client and negotiated
an agreement to receive personally 85% of the proceeds of the
contingency fee award, contrary to the terms of the Partnership
Agreement.” Petitioner asserts that at the end of April 2021,
Mr. McNamara and Edward Reich, Dentons’s general counsel,
arranged the creation of a forgery, purporting to be a letter from
4
the client’s representative directing a third party to transfer
certain client-held securities worth tens of millions of dollars
directly to Dentons. Petitioner reported the alleged forgery to the
board on April 30, 2021, demanding Mr. McNamara’s immediate
termination.
On May 5, 2021, the Dentons board voted unanimously to
terminate petitioner’s status as a partner for cause, and initiated
an arbitration the same day, alleging petitioner breached the
partnership agreement and his fiduciary duty of loyalty to
Dentons.
2. Arbitration Proceedings in New York and Court
Proceedings in California
Litigation in New York and California developed.
On May 14, 2021, Dentons requested an emergency
arbitrator from CPR, the arbitral body. An emergency arbitrator
was appointed, and a hearing was scheduled for May 24 to
discuss petitioner’s objections to jurisdiction. The emergency
arbitrator issued several emergency awards over the following
two weeks or so. Among other things, these awards rejected
petitioner’s challenges to jurisdiction; the final emergency award
on June 10, 2021, required petitioner to make certain disclosures
to Dentons about his efforts to collect the contingency fee and
prohibited him from misusing confidential information.
Meanwhile, on May 24, 2021, petitioner filed a wrongful
termination complaint in Los Angeles Superior Court, naming
Dentons, Mr. McNamara and Mr. Reich as defendants. The next
day, he notified the emergency arbitrator he was withdrawing
from the arbitration and would apply to a court to stay the
arbitration. On May 26, 2021, petitioner filed a first amended
5
complaint that included a challenge to the arbitrator’s
jurisdiction.
On June 1, 2021, petitioner filed an application for a TRO
and order to show cause why a preliminary injunction should not
issue to restrain the New York arbitration. Among the grounds
were that only a court could decide the parties’ dispute over
whether the partnership agreement contained a valid delegation
clause, and that Labor Code section 925 prohibits Dentons from
arbitrating claims arising from petitioner’s California
employment in a New York arbitration.
On June 14, 2021, Dentons filed a petition to confirm the
three emergency awards in a New York court.
On June 15, 2021, after various proceedings unnecessary to
relate, Judge James C. Chalfant issued a TRO enjoining the New
York arbitration.
On June 28, 2021, Dentons moved in the New York court to
compel arbitration.
That same day, Dentons moved in the Los Angeles Superior
Court to stay this case under Code of Civil Procedure
section 1281.4. Section 1281.4 requires the court, upon motion, to
stay a pending action if an application has been made to “a court
of competent jurisdiction” for an order to arbitrate a controversy
that is an issue in the pending action.
On July 13, 2021, Judge Chalfant granted petitioner’s
application for a preliminary injunction of the New York
arbitration, stating: “The arbitration in New York is enjoined
until the [independent calendar] court acts on [petitioner’s]
arbitrability claims that the delegation clause is not clear and
unmistakable.”
6
On August 17, 2021, the independent calendar court (Judge
Sotelo) granted Dentons’s motion to stay petitioner’s lawsuit.
The court concluded the arbitration agreement “clearly and
unmistakably delegate[s] arbitrability issues to the arbitrator,”
and “[u]nder this Partnership Agreement, this Court has no
jurisdiction to consider Partner Zhang’s arguments against
enforcement.”
The court also ruled that Labor Code section 925 does not
require the arbitration to occur in California instead of New
York, rejecting petitioner’s claim that New York is not a court of
competent jurisdiction. The court explained it need not
determine whether petitioner “was an employee or something
else in his relationship as a Partner at Dentons, because the
Partnership Agreement clearly states that ‘all disputes relating
to the validity, breach, interpretation or enforcement’ are to be
resolved by the arbitrator.” The court further observed that a
motion to compel arbitration was currently pending “before a
court of competent jurisdiction in New York, New York,” and
“New York is a court of competent jurisdiction because the
Partnership Agreement itself contains a venue provision allowing
Dentons to bring an action there.” The court also lifted and
vacated the preliminary injunction.
3. The Writ Proceedings
On August 19, 2021, petitioner challenged Judge Sotelo’s
order staying the matter by filing a petition for writ of mandate
with this court. The petition asked us to hold that Labor Code
section 925 “renders out-of-state courts not competent for
purposes of [Code of Civil Procedure section] 1281.4,” so that an
employer’s motion to compel arbitration filed in a foreign court
does not trigger a mandatory stay under section 1281.4. After
7
receiving preliminary briefing, we concluded petitioner had not
established entitlement to extraordinary relief, and denied the
petition.
Petitioner sought review in the Supreme Court, and on
February 16, 2022, the Supreme Court granted the petition. The
court transferred the matter to us with directions to vacate our
order denying mandate and issue an order to show cause why the
relief sought should not be granted. The court also granted a
stay of the trial court’s order lifting its injunction against the
New York arbitration, subject to our further consideration. We
issued an order to show cause and received further briefing. We
again deny the petition.
DISCUSSION
The New York court is a court of competent jurisdiction to
rule on Dentons’s motion to compel arbitration. The proposition
that Labor Code section 925, when invoked by a plaintiff,
automatically strips another state’s courts of jurisdiction is
unsupported by legal authority, is antithetical to notions of
comity, and is at odds with the animating purpose of the Federal
Arbitration Act (FAA; 9 U.S.C. § 1 et seq.).
The parties to the partnership agreement clearly and
unmistakably delegated questions of arbitrability to the
arbitrator. A solid body of law provides that delegation clauses
are enforceable. Consequently, the New York arbitrator must
decide whether petitioner is an employee and therefore entitled
to the protections of Labor Code section 925.
If the arbitrator decides petitioner is an employee for
purposes of Labor Code section 925, then (as Dentons concedes),
“none of his claims against Dentons, or Dentons’ claims against
him, would ever be adjudicated outside of California.” If the
8
arbitrator decides petitioner is not an employee, section 925 has
no application, and the merits of the parties’ dispute will be
decided by arbitration in New York, as agreed.
1. The Statutes
For ease of reference, we set out the pertinent texts of the
two relevant statutory provisions.
Code of Civil Procedure section 1281.4 provides in part: “If
an application has been made to a court of competent jurisdiction,
whether in this State or not, for an order to arbitrate a
controversy which is an issue involved in an action or proceeding
pending before a court of this State and such application is
undetermined, the court in which such action or proceeding is
pending shall, upon motion of a party to such action or
proceeding, stay the action or proceeding until the application for
an order to arbitrate is determined and, if arbitration of such
controversy is ordered, until an arbitration is had in accordance
with the order to arbitrate or until such earlier time as the court
specifies.”1
Labor Code section 925 provides in part: “(a) An employer
shall not require an employee who primarily resides and works in
California, as a condition of employment, to agree to a provision
that would do either of the following: [¶] (1) Require the
employee to adjudicate outside of California a claim arising in
California. [¶] (2) Deprive the employee of the substantive
1 A similar provision applies “[i]f a court of competent
jurisdiction, whether in this State or not, has ordered arbitration
of a controversy . . . .” (Code Civ. Proc., § 1281.4.) The parties
inform us the New York court granted Dentons’s motion to
compel arbitration, and petitioner filed a notice of appeal of that
order.
9
protection of California law with respect to a controversy arising
in California. [¶] (b) Any provision of a contract that violates
subdivision (a) is voidable by the employee, and if a provision is
rendered void at the request of the employee, the matter shall be
adjudicated in California and California law shall govern the
dispute.”2
2. The New York Court Is a Court of Competent
Jurisdiction.
Petitioner contends that “when an employee invokes [Labor
Code section] 925, a foreign court is not one of ‘competent
jurisdiction’ under [Code of Civil Procedure section] 1281.4.” This
is wrong for multiple reasons.
“A court of competent jurisdiction is a court with the power
to adjudicate the case before it.” (Lightfoot v. Cendant Mortgage
Corp. (2017) 580 U.S. 82, 91.) By signing the partnership
agreement which expressly vests jurisdiction in New York courts,
petitioner consented to the jurisdiction of the New York court. It
is obviously a court of competent jurisdiction. As petitioner’s
counsel stated to the New York court that granted Dentons’s
motion to compel arbitration, “in 99 percent of cases [an
agreement] constitutes consent to jurisdiction.” It does so here as
well.
2 Labor Code section 925 also allows the court to award an
employee reasonable attorney fees (id., subd. (c)); states that
“adjudication includes litigation and arbitration” (id., subd. (d));
and does not apply to a contract with an employee who is
represented by legal counsel in negotiating the terms of an
agreement to designate venue or forum or choice of law
provisions (id., subd. (e)).
10
Petitioner insists that Labor Code section 925 changes that
jurisdictional principle “when an employee invokes Section 925.”
But Dentons disputes that petitioner is an employee. As the trial
court below stated, “no case indicates that [section] 925 applies
automatically.” Section 925, subdivision (b) states that a clause
requiring an employee to adjudicate claims outside California is
voidable by the employee, “and if a provision is rendered void at
the request of the employee,” the matter must be adjudicated in
California. We agree with the Fifth District that “the most
plausible interpretation of this language is that an employee is
required to request a court to render a decision that the offending
clause is void.” (LGCY Power, LLC v. Superior Court (2022)
75 Cal.App.5th 844, 864 (LGCY).) In other words, “a violative
clause does not become void simply by the employee declaring an
intent to void it.” (Ibid.)
But we need not decide whether an employee can simply
declare a provision void, because this is a case where petitioner’s
status as an employee is a substantial issue. Petitioner’s theory
that he may unilaterally deprive the New York courts of
jurisdiction to rule on a motion to compel arbitration, by merely
invoking Labor Code section 925, finds no support in law and (as
we discuss later) is contrary to principles of comity and to the
principles underlying the FAA.
Of course, as Dentons admits, it would be equally wrong to
assume that petitioner is not an employee, as that would allow an
employer to evade Labor Code section 925 entirely. At issue here
is only the question of who is to decide whether petitioner is an
employee. As we discuss below, the parties delegated questions
of arbitrability to the arbitrator, and petitioner’s status is one of
those questions.
11
3. The Parties Delegated Arbitrability Issues to the
Arbitrator
a. Petitioner’s irrelevance claim
Preliminarily, petitioner contends the trial court erred “in
considering the existence of a delegation clause” in connection
with Dentons’s motion for a stay of litigation under Code of Civil
Procedure section 1281.4. He contends the delegation clause is
irrelevant, because the question “whether the New York court is
of competent jurisdiction to compel arbitration” is not a question
of arbitrability. Petitioner is mistaken.
Throughout his briefing, petitioner evades articulating the
fundamental issue. When Dentons filed its motion to stay the
litigation here, petitioner opposed that motion with the claim
that Labor Code section 925, by permitting an employee to void a
clause selecting a foreign forum, renders the New York court not
competent to compel arbitration. That claim necessarily raises
the question whether petitioner is an employee entitled to void
the clause in the first place. And that question in turn
necessarily requires a ruling on who is to decide whether
petitioner is entitled to void the clause: the trial court or the
arbitrator. The trial court here clearly understood this, as did
Judge Chalfant when he enjoined the New York arbitration “until
the [independent calendar] court acts on [petitioner’s]
arbitrability claims that the delegation clause is not clear and
unmistakable.”
Several courts have held the applicability of Labor Code
section 925 is a question of arbitrability that may be delegated to
the arbitrator. For example, Ratajesak v. New Prime, Inc.
(C.D.Cal. Mar. 20, 2019, No. SA CV 18-9396-DOC (AGRx)) 2019
U.S.Dist. Lexis 70506 (Ratajesak) involved motions to compel
12
arbitration of various wage claims on an individual basis under
arbitration agreements the defendant contended were governed
by Missouri law. (Id. at p. *9.) The plaintiffs claimed the
agreements could not be enforced under California Labor Code
provisions, including section 925. (Ratajesak, at pp. *10, *15.)
The court “decline[d] to address California policy governing
arbitration of unpaid wages when, as here, the parties contracted
to delegate questions of arbitrability to the arbitrator.” (Id. at
p. *13.)
Specifically, Ratajesak found the agreements clearly and
unmistakably provided that disputes, including arbitrability of
disputes between the parties, would be resolved by arbitration,
and both Missouri and California law required enforcement of the
delegation clause. (Ratajesak, supra, 2019 U.S.Dist. Lexis 70506
at pp. *13–*14.) The court concluded: “[The] Plaintiffs’
arguments regarding the scope of the arbitration agreement; the
application of California Labor Code Section 925; and the
application [of]California Labor Code Section 229 may well
render the claims unarbitrable. But under the contract, the
parties clearly and unmistakably delegated this question to the
arbitrator.” (Id. at p. *15, italics added; see also Smith v. Nerium
International, LLC (C.D.Cal. Sept. 10, 2019, No. SACV 18-
01088JVS(PLAx) 2019 U.S.Dist. Lexis 222601, p. *17
[“arguments as to the effect of [Labor Code section 925]—if any—
on the arbitration provision are properly reserved for the
arbitrator to whom the parties delegated the question of
arbitrability”]; Pacelli v. Augustus Intelligence, Inc. (S.D.N.Y.
2020) 459 F.Supp.3d 597, 617 [“The applicability of Section 925 is
a question of the forum provision’s ‘enforceability,’ ” and “[t]he
enforceability of a contract is a threshold issue that ‘parties may
13
agree to arbitrate’ ”; California courts have determined that
“whether Section 925 is a question of arbitrability” is an issue
that can be delegated to the arbitrator].)
Petitioner says that Ratajesak “proves the point” that
Dentons’s motion to stay did not present an arbitrability
question. This is a mystifying contention, in support of which
petitioner simply repeats his claim that, unlike Ratajesak,
arbitrability is “not the issue in this proceeding.” As we have
explained, petitioner’s claim to be an employee who can
automatically void an agreement to arbitrate in a foreign court is
precisely the issue, and in the posture of this case, petitioner’s
status as an employee (or not) is necessarily a gateway question
of arbitrability.
Petitioner claims, “separately,” that the trial court “lacked
jurisdiction to determine whether a delegation clause exists”; the
trial court “was deeply confused about the issues before it,” and
“under well-established law, it lacked the authority” to analyze
the delegation and arbitration clauses in a Code of Civil
Procedure section 1281.4 motion to stay. This claim is equally
fruitless. Petitioner cites only MKJA, Inc. v. 123 Fit Franchising,
LLC (2011) 191 Cal.App.4th 643, which held that “a party’s
inability to afford to pay the costs of arbitration is not a ground
on which a trial court may lift a stay of litigation that was
imposed pursuant to section 1281.4.” (Id. at p. 647.) The case
has no relevance, except for the general point that the purpose of
the stay “ ‘is to protect the jurisdiction of the arbitrator by
preserving the status quo until arbitration is resolved.’ ” (Id. at
p. 658.) Petitioner does not cite the “well-established law” under
14
which he claims the court “lacked the authority” to rule on the
delegation clause.3
3 Petitioner also relies on the legislative history of Labor
Code section 925, and a number of cases, arguing that the
Legislature intended to ensure that California employees cannot
be forced to litigate or arbitrate their California-based claims
outside of California, and intended section 925 to apply “in every
case or controversy in which its criteria are satisfied.” (LGCY,
supra, 75 Cal.App.5th at p. 863.) We do not disagree, but that
intent does not bear on the question of who is to decide whether
petitioner is an employee entitled to invoke section 925. Other
cases petitioner cites include Midwest Motor Supply Co. v.
Superior Court (2020) 56 Cal.App.5th 702, 706, 715 (a forum non
conveniens case holding section 925 is triggered by any
modification to an employment contract occurring after the
statute’s effective date); Lyon v. Neustar, Inc. (E.D.Cal. May 3,
2019, No. 2:19-cv-00371-KJM-KJN) 2019 U.S.Dist. Lexis 75307,
pp. *2, *22 (preliminarily enjoining the defendant from further
pursuing litigation or arbitration against the plaintiff outside of
California; the plaintiff was likely to succeed on the merits
because the employment agreement, as modified to require
resolution of all disputes in Virginia, ran afoul of section 925);
Focus Financial Partners, LLC v. Holsopple (Del.Ch. 2020) 241
A.3d 784, 792, 822 (concluding, “[a]fter a lengthy choice-of-law
analysis,” that Delaware forum provisions in several
employment-related agreements could not support jurisdiction in
Delaware, because applying Delaware law “would offend a
fundamental policy of the State of California on a matter where
California has a materially greater interest”; the defendant
employee was entitled to void the Delaware forum and Delaware
law provisions under section 925). None of these cases involved
the delegation clause of an arbitration agreement.
15
b. The delegation clause is clear and
unmistakable.
As described in part 1 of the Facts, ante, the arbitration
clause in the partnership agreement covers “all disputes relating
to the validity, breach, interpretation or enforcement of this
Agreement,” and requires those disputes to be resolved “in
accordance with the CPR Rules of Non-Administered Arbitration
then currently in effect.”
Judge Sotelo’s decision granting Dentons’s motion to stay
first quotes rule 8.1 of the CPR Rules as stating “that ‘[t]he
Tribunal shall have the power to hear and determine challenges
to its jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration agreement. This
authority extends to jurisdictional challenges with respect to both
the subject matter of the dispute and the parties to the
arbitration.’ ” The court further stated that there “appears to be
no ambiguity that the Partnership Agreement also clearly and
unmistakably delegates arbitrability issues to the arbitrator.”
There is no dispute over the applicable principles of law on
questions of arbitrability. “ ‘Under California law, it is presumed
the judge will decide arbitrability, unless there is clear and
unmistakable evidence the parties intended the arbitrator to
decide arbitrability.’ ” (Nelson v. Dual Diagnosis Treatment
Center, Inc. (2022) 77 Cal.App.5th 643, 654 (Nelson).) Federal
law is the same. (Henry Schein, Inc. v. Archer & White Sales,
Inc. (2019) ___U.S.___ [139 S.Ct. 524, 530]; ibid. [“But if a valid
agreement exists, and if the agreement delegates the arbitrability
issue to an arbitrator, a court may not decide the arbitrability
issue.”].)
16
“[T]he best indicator of the parties’ intent in a written
contract is the words they chose for the agreement.” (Nelson,
supra, 77 Cal.App.5th at p. 654.) “ ‘Even broad arbitration
clauses that expressly delegate the enforceability decision to
arbitrators may not meet the clear and unmistakable test, where
other language in the agreement creates an uncertainty in that
regard.’ ” (Id. at p. 656.)
Here, we have a broad arbitration clause that expressly
delegates the enforceability decision to the arbitrator. In
addition, the CPR Rules to which the parties agreed are crystal
clear on the point. “[W]here the Contract provides for arbitration
in conformance with rules that specify the arbitrator will decide
the scope of his or her own jurisdiction, the parties’ intent is clear
and unmistakable, even without a recital in the contract that the
arbitrator will decide any dispute over arbitrability.” (Dream
Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 557.)
In his reply, petitioner asserts that the partnership
agreement “also empowers courts to adjudicate issues,”
suggesting those provisions create the uncertainty referred to in
Nelson, and he has been “denied . . . his right to make these
arguments.” Petitioner says he cited five provisions of the
partnership agreement in his reply to Dentons’s preliminary
opposition. He does not describe or discuss those provisions in
his reply to Dentons’s return, requiring us to consult his reply to
Dentons’s preliminary opposition to find out what they are. We
have done so, and our review of the partnership agreement
provisions petitioner cited confirms those provisions do not create
the “uncertainty” to which Nelson refers.4
4 In his reply to Dentons’s preliminary opposition, petitioner
cites a provision (§ 12.5) on litigation expenses that requires each
17
Nelson and the other cases petitioner cites involve express
statements in the arbitration agreement showing or suggesting
“dual delegation.” In Nelson, the incorporation in the agreement
of arbitration rules authorizing the arbitrator to determine
arbitrability did not result in a clear and unmistakable
delegation, because the agreement itself contained a
“simultaneous express statement of broad judicial power to hold
‘any provision’ of their agreement ‘invalid or unenforceable for
any reason.’ ” (Nelson, supra, 77 Cal.App.5th at p. 657; ibid. [“At
best, the dual delegation presented by the facts here—to the
party to pay the party’s own attorney fees if any party brings
“any legal action, arbitration, or other proceeding with respect to
the breach, interpretation, or enforcement of this Agreement.”
He cites a provision (§ 12.6) on the severability of any provision
that is “adjudicated to be void, illegal, invalid, or unenforceable.”
He cites the dispute resolution provision itself (§ 12.10), which
states that the arbitrator “shall have no power or authority to
add to, amend, modify or disregard any of the provisions of this
Agreement.” He cites a section of the dispute resolution
provisions entitled “Determinations by the DUS Board”
(§ 12.10.1) that states all issues and disputes “relating to the
construction and interpretation” of the partnership agreement
are to be determined by the board, and refers to “any arbitration
or other legal proceeding” concerning such determinations by the
board. Finally, he cites the “Confidentiality” section of the
dispute resolution provisions (§ 12.10.3) that deems all
proceedings and documents concerning any arbitration to be
“Confidential Information,” and goes on to say that all
“documents filed in any federal or state court in connection with
the enforcement, interpretation or breach of any provision of this
Agreement to be filed under seal.” None of these provisions
creates any uncertainty about whether the arbitrator—and not
the court—is empowered to determine arbitrability issues.
18
arbitrator by reference to AAA rules, and to the court expressly—
created uncertainty.”].)
Similarly, we held in Dennison v. Rosland Capital
LLC (2020) 47 Cal.App.5th 204 that “[w]here . . . a contract
includes a severability clause stating a court of competent
jurisdiction may excise an unconscionable provision, there is no
clear and unmistakable delegation to the arbitrator to decide if
the arbitration agreement is unconscionable.” (Id. at pp. 209–
210.) And in Parada v. Superior Court (2009) 176 Cal.App.4th
1554, the contract contained a broad agreement to submit
controversies including the scope or applicability of the
agreement to the arbitrator, but also contained a severability
provision authorizing “ ‘a trier of fact of competent jurisdiction’ ”
to determine the enforceability of any provision of the agreement.
(Id. at pp. 1565–1566.) The use of the phrase “a trier of fact of
competent jurisdiction” instead of “arbitration panel” or similar
language used in the arbitration provisions of the agreement
“suggests the trial court also may find a provision, including the
arbitration provision, unenforceable,” so there was no clear and
unmistakable delegation to the arbitrator. (Id. at p. 1566.)
There is no such ambiguity or uncertainty in this case (see
fn. 4, ante), so petitioner’s claim he was “denied . . . his right to
make these arguments” is meritless.
4. Other Considerations: Comity and Preemption
As previously mentioned (see fn. 1, ante, at p. 9), the New
York court granted Dentons’s motion to compel arbitration on
August 20, 2021, expressly finding it had jurisdiction over
petitioner by virtue of his execution of the partnership
agreement. Our conclusion the arbitrator must decide whether
the arbitration may proceed in New York preserves principles of
19
comity, under which judges decline to exercise jurisdiction when
matters are more appropriately adjudicated elsewhere. Indeed,
we find it difficult to imagine, in the circumstances here, how a
California court could justify overriding the New York court’s
order compelling arbitration.
More important, however, is that petitioner’s proposed
construction of Labor Code section 925—allowing petitioner to
unilaterally void an agreement to arbitrate gateway issues of
arbitrability in New York—would be inconsistent with the
principles underlying the FAA. Petitioner insists the trial court
erred by ruling it could not consider section 925 because of the
delegation clause, and that we should decide that issue now, or if
not, remand the matter to the trial court to rule on section 925 in
the first instance. But the notion that the court may rule on an
issue the parties delegated to an arbitrator seems to us to present
the kind of obstacle to arbitration that the FAA has long
condemned.
The high court’s most recent discussion of FAA preemption
appears in Viking River Cruises, Inc. v. Moriana (2022)
___U.S.___ [142 S.Ct. 1906] (Viking). The court recites the
fundamental principles with which we are all familiar, including
the FAA’s “ ‘equal-treatment principle,’ ” under which “the FAA
‘preempts any state rule discriminating on its face against
arbitration.’ ” (Viking, at p. 1917.) That principle is not at issue
here, because Labor Code section 925 applies to both litigation
and arbitration. But Viking also explains: “[U]nder our
decisions, even rules that are generally applicable as a formal
matter are not immune to preemption by the FAA. [Citations.]
Section 2’s mandate protects a right to enforce arbitration
20
agreements.” (Viking, at pp. 1917–1918, italics added.)5 That
mandate would be seriously compromised if we were to conclude
that the invocation of section 925 permits a party to disregard his
agreement that the arbitrator is to decide all issues of
arbitrability.
Viking explains the point. “The FAA’s mandate is to
enforce ‘arbitration agreements.’ [Citation.] And as we have
described it, an arbitration agreement is ‘a specialized kind of
forum-selection clause that posits not only the situs of suit but
also the procedure to be used in resolving the dispute.’
[Citations.] An arbitration agreement thus does not alter or
abridge substantive rights; it merely changes how those rights
will be processed. And so we have said that ‘ “[b]y agreeing to
arbitrate a statutory claim, a party does not forgo the substantive
rights afforded by the statute; it only submits to their resolution
in an arbitral . . . forum.” ’ ” (Viking, supra, 142 S.Ct. at p. 1919,
quoting Preston v. Ferrer (2008) 552 U.S. 346, 359; see Preston, at
p. 359 [“So here, Ferrer relinquishes no substantive rights . . .
California law may accord him. But under the contract he
signed, he cannot escape resolution of those rights in an arbitral
forum.”]; id. at pp. 349–350 [“when parties agree to arbitrate all
questions arising under a contract, state laws lodging primary
jurisdiction in another forum, whether judicial or administrative,
are superseded by the FAA”].)
5 The FAA’s section 2 states: “A written provision in . . . a
contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract
. . . , or the refusal to perform the whole or any part thereof, . . .
shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract . . . .” (9 U.S.C. § 2.)
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Here, our enforcement of the parties’ agreement to delegate
arbitrability decisions to the arbitrator does not “alter or abridge”
petitioner’s substantive rights under Labor Code section 925; “it
merely changes how those rights will be processed.” (Viking,
supra, 142 S.Ct. at p. 1919.) Section 925 presents no conflict with
the FAA when we give effect to the parties’ agreement to delegate
arbitrability issues to the arbitrator. The arbitrator will decide,
as agreed, all issues of arbitrability, including whether petitioner
is an employee who is entitled to invoke the protections of
section 925.
But if Labor Code section 925 were construed, as petitioner
would have us do, as enabling him to avoid his agreement to
delegate arbitrability issues to the arbitrator by unilaterally
declaring himself an employee, and in so doing deprive a foreign
court of jurisdiction to compel arbitration, the statute may well
“ ‘stand[] as an obstacle to the accomplishment and execution of
the full purposes and objectives’ ” of the FAA. (AT&T Mobility
LLC v. Concepcion (2011) 563 U.S. 333, 352.) The question
whether section 925 applies was, as we have held, an
arbitrability issue. It cannot be decided by a court because the
parties agreed otherwise. Any other conclusion would “unduly
circumscribe[] the freedom of parties to determine ‘the issues
subject to arbitration’ . . . .” (Viking, supra, 142 S.Ct. at p. 1923.)
Petitioner insists “[t]here is no credible preemption issue
here,” because the “issue underlying the stay motion is whether
the New York court is a court of competent jurisdiction,” and “not
whether the dispute is arbitrable or even whether there is a
delegation clause.” As already discussed at length, petitioner’s
articulation of the issue is simply wrong. He once again evades
the fundamental question of who is to decide whether he is an
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employee entitled to the protections of Labor Code section 925.
Instead, he would have us ignore his agreement to delegate
arbitrability issues to the arbitrator and conclude that
section 925 automatically renders a New York court incompetent
to decide a motion to compel arbitration. That would erect an
obstacle to arbitration that is inconsistent with the FAA’s
principle that parties are free to determine the issues subject to
arbitration and that FAA section 2’s mandate “protects a right to
enforce arbitration agreements.” (Viking, supra, 142 S.Ct. at
pp. 1923, 1918.)
Petitioner points out Labor Code section 925 “applies
equally to litigation and arbitration,” and asserts there is no
preemption issue because “Dentons can still file a petition to
compel arbitration” but must do so in California. This ignores
the posture of the case, and is just another way of avoiding the
central issue. Dentons initiated arbitration in New York as
authorized by the partnership agreement. Petitioner resists
arbitration by contending that section 925 deprives New York
courts of jurisdiction to compel arbitration and asks the
California court to decide an issue the parties agreed would be
decided by the arbitrator.
Finally, petitioner cites Depuy Synthes Sales, Inc. v.
Howmedica Osteonics Corp. (9th Cir. 2022) 28 F.4th 956,
describing it as “a similar preemption challenge to Section 925.”
There is no real similarity. Depuy concerns Labor Code
section 925, but it does not involve the FAA or arbitration. Depuy
held that section 925, “which grants employees the option to void
a forum-selection clause under a limited set of circumstances,
determines the threshold question of whether [the employee’s]
contract contains a valid forum-selection clause.” (Id. at p. 964.)
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Depuy rejected the claim that a federal law on change of venue
(28 U.S.C. § 1404(a)) preempted section 925, stating that nothing
in high court decisions “creates a federal rule of contract law that
preempts a state law like § 925 from addressing the upstream
question of whether the contract sought to be enforced includes a
viable forum-selection clause.” (Depuy, at p. 964.) Depuy is not
relevant here.
To summarize the point: We agree with Dentons that
Labor Code section 925 on its face does not conflict with the FAA.
But under petitioner’s reading, his invocation of section 925
strips the arbitrator of the authority to decide whether he is an
employee entitled to void his agreement to arbitrate in New York,
and vests that authority in California courts instead. At a
minimum, that result would circumscribe “the freedom of parties
to determine ‘the issues subject to arbitration’ ” (Viking, supra,
142 S.Ct. at p. 1923) and consequently undermine the animating
principles of the FAA.
CONCLUSION
In sum: New York is a court of competent jurisdiction. The
parties delegated questions of arbitrability to the arbitrator. The
arbitrator in New York must decide if petitioner is an employee.
If the arbitrator decides petitioner is an employee, the merits of
the dispute must be decided in California. If the arbitrator
decides petitioner is not an employee, then the merits of the
dispute must be arbitrated in New York, as agreed. These
conclusions preserve comity and avoid undermining the freedom
of parties to determine the issues they agree to arbitrate, in
consonance with longstanding FAA principles.
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DISPOSITION
The petition is denied. Costs are awarded to Dentons.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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