Mendez v. Mid-Wilshire Health Care Ctr. CA2/7

Filed 9/23/13 Mendez v. Mid-Wilshire Health Care Ctr. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
MARIBEL MENDEZ, B243144
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC449964)
v.
MID-WILSHIRE HEALTH CARE
CENTER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Alan S.
Rosenfield, Judge. Affirmed.
Beach Whitman Cowdrey; Beach Cowdrey Owen, Thomas E. Beach, Sean D.
Cowdrey and Darryl C. Hottinger for Defendant and Appellant.
Law Offices of Ramin R. Younessi, Ramin R. Younessi and Kaveh S. Elihu for
Plaintiff and Respondent.
_____________________
INTRODUCTION
Defendant Mid-Wilshire Health Care Center (Mid-Wilshire) appeals from an order
denying its motion to compel arbitration and to stay this wrongful termination action filed
by plaintiff Maribel Mendez. We hold that the arbitration provision in the collective
bargaining agreement governing Mendez‟s employment does not apply to Mendez‟s
statutory discrimination claims, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mid-Wilshire hired Mendez as a nurse‟s assistant in January 1985, when she was
42 years old. Mendez worked at Mid-Wilshire‟s skilled nursing facility in Los Angeles.
She was a union member and served on the union bargaining committee.
In February 2009 Mendez, then 66 years old, experienced vaginal bleeding. She
sought medical care from a gynecologist who provided her with a note stating she could
return to work on March 2, 2009. On that date, Mendez gave the note to Betty Aguilar,
who Mendez alleged was Mid-Wilshire‟s sole principal with the “ability to hire, fire,
discipline, demote and grant raises.” Aguilar told Mendez to go home and said she
would call Mendez on March 4. Aguilar did not call Mendez on March 4, so on March 5
Mendez called Aguilar, who asked to speak to Mendez in person. Feeling uncomfortable,
Mendez called a union representative who advised Mendez not to meet with Aguilar and
stated he would arrange a meeting with Aguilar.
On March 17, 2009 Mendez, the union representative, and Aguilar met. Aguilar
terminated Mendez‟s employment.1 The union representative subsequently tried
unsuccessfully to get Mendez her job back.
1 The appellate record sheds no light on the reason for the termination.
2
Mendez filed this action on November 19, 2010 against Mid-Wilshire and Aguilar,
alleging seven causes of action. Four were common law claims for breach of the
covenant of good faith and fair dealing, wrongful termination in violation of public
policy, intentional infliction of emotional distress, and retaliation. Three were statutory
causes of action for violations of the California Fair Employment and Housing Act
(FEHA; Gov. Code, § 12940 et seq.) based on disability discrimination, age
discrimination, and failure to provide reasonable accommodation. Mendez subsequently
dismissed Aguilar from the case. Mid-Wilshire filed a motion to compel arbitration and
stay the action, arguing that Mendez‟s claims were subject to the grievance and
arbitration procedure set forth in the collective bargaining agreement between Mid-
Wilshire and the union.
Article 19 of the collective bargaining agreement, entitled “GRIEVANCE AND
ARBITRATION,” provides:
“Section 1 – General Principles
“A. The following procedure shall be applied and relied upon by both parties as
the sole and exclusive means of adjustment of and settling grievances.
“B. Both parties agree that, prior to the filing of any grievance, except for
grievances protesting discharge or suspension, an informal discussion may be held in an
attempt to resolve the dispute.
“Section 2 – Step One
“All grievances, except those involving discharge and suspension shall be initiated
at Step One. . . .
“Section 3 – Step Two
“A. In order for a grievance to be considered further, an appeal shall be filed
with the Administrator, at the facility, within seven (7) calendar days after receipt of the
Step One response. In addition, grievances involving discharge and suspension shall be
introduced at this Step of the Grievance and Arbitration Procedure.
“B. Within seven (7) calendar days after receipt of the Step One appeal or
newly initiated grievance, a meeting shall be held with the Union Business
3
Representative, and the Administrator or designee. Within five (5) calendar days after
such meeting, the Administrator or his/her designee, on behalf of the Employer, shall
respond, in writing, to the Union Business Representative. If no answer is given the
grievance will be deemed to have been denied.
“Section 4 – Step Three Mediation
“After compliance with Sections 2 and 3 above the Company and the Union may
within five (5) days arrange to meet with a representative of the Federal Mediation and
Conciliation Service (FMCS) or any other mutually-agreed upon source of a mediator,
who shall attempt to resolve the dispute and, if mediation is not successful, shall render a
non-binding advisory finding based on the facts of the case.
“Section 5 – Step Four Arbitration
“A. In the event the grievance remains unresolved, the grieving party may
appeal the grievance to arbitration. Written notice of such appeal must be made within
seven (7) calendar days after receipt of the Step Three response. All such appeals shall
be sent by certified mail, and the date of mailing shall establish the timeliness of appeal.
[¶] . . .
“C. The arbitrator shall have no power to alter, amend, change, add to or
subtract from any of the terms of this Agreement, but shall determine only whether or not
there has been a violation of the Agreement in respect to the alleged grievance and
remedy. The decision or award of the arbitrator shall be based solely upon the evidence
and arguments presented to him by the respective parties in the presence of each other.
The decision or award of the arbitrator within the limits herein prescribed shall be made
in writing and shall be final and binding upon the Employer, the Union, and the
employees affected. Costs of the arbitrator shall be shared equally by the Employer and
the Union.”
Mendez opposed Mid-Wilshire‟s motion to compel arbitration. She argued that
she was not a party to the agreement and that the terms of the agreement did not
encompass her FEHA claims.
4
At the hearing on the motion, the trial court announced its tentative decision to
deny Mid-Wilshire‟s motion to compel arbitration of Mendez‟s FEHA claims based on
the leading California case in this area of the law, Vasquez v. Superior Court (2000) 80
Cal.App.4th 430 (Vasquez). The trial court also stated it intended to grant the motion to
compel arbitration of Mendez‟s remaining claims, to stay the arbitration, and to try the
FEHA claims first. Because neither party cited Vasquez, the court continued the hearing
to allow the parties to submit additional briefing.
In its supplemental brief, Mid-Wilshire argued that the collective bargaining
agreement was specific enough to require arbitration of Mendez‟s FEHA claims and that
Vasquez “is suspect and has been implicitly overruled” by the United States Supreme
Court in AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. 1740, 179
L.Ed.2d 742] (Concepcion). Mid-Wilshire argued that, in light of recent United States
Supreme Court arbitration decisions, Vasquez “is . . . contrary to the [Federal Arbitration
Act (FAA)]” and “is no longer controlling law,” that the FAA applied to the employment
agreements of skilled nursing facilities, and that the trial court did not have the authority
to stay arbitration and try non-arbitrable claims first. Mendez argued that the collective
bargaining agreement was not subject to the FAA and that Concepcion was not
controlling. Relying on Vasquez, Mendez argued that the collective bargaining
agreement “is not sufficiently specific to constitute a waiver of [her] right to a jury trial
on her FEHA claims.”
At the continued hearing the trial court stated: “There is a considerable vagueness
in Article 19 with regard to arbitration of a grievance. I don‟t know that grievance or a
termination under circumstances that justify a statutory cause of action under FEHA or
otherwise are adequately defined as being embraced within that arbitration process . . . .”
“Here, I don‟t find that there is sufficient certainty with regard to the subjects to be
arbitrated. And, accordingly, I‟m denying the motion in this case on the contract . . . to
send this matter to arbitration.” The court also cited the following language in
subparagraph A of section 5 of Article 19: “In the event the grievance remains
unresolved, the grieving party may appeal the grievance to arbitration.” The court
5
emphasized, “It doesn‟t say „shall.‟ It says „may.‟ As far as I‟m concerned, that doesn‟t
impose a contractual mandate to pursue arbitration.” The trial court stated in its written
order that it was denying Mid-Wilshire‟s motion to compel arbitration “on the grounds
that the arbitration provision within the Collective Bargaining Agreement is vague as to
whether arbitration is mandatory.” The trial court continued the trial, re-opened
discovery, and scheduled a case management conference. Mid-Wilshire filed this timely
appeal.
DISCUSSION
A. Applicable Law and Standard of Review
“There is a strong public policy in favor of arbitration. [Citations.] [¶] Under
both the [FAA] [citation] and the California Arbitration Act (CAA [citation]), arbitration
agreements are valid, irrevocable and enforceable except upon grounds that exist for
revocation of the contract generally. [Citations.]”2 (Serpa v. California Surety
Investigations, Inc. (2013) 215 Cal.App.4th 695, 701-702, fn. omitted.) “„[A]rbitration is
a matter of contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.‟ [Citations.]” (AT&T Technologies, Inc. v.
Communications Workers of America (1986) 475 U.S. 643, 648 [106 S.Ct. 1415, 89
L.Ed.2d 648]; see Sparks v. Vista Del Mar Child & Family Services (2012) 207
Cal.App.4th 1511, 1518 [“[b]ecause arbitration is a contractual matter, a party that has
not agreed to arbitrate a controversy cannot be compelled to do so”].)
A trial court must grant a petition to compel arbitration “if it determines that an
agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2; see Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59.) There is, however,
“no public policy in favor of forcing arbitration of issues the parties have not agreed to
2 The parties dispute whether the FAA applies in this case. We assume for purposes
of this appeal that it does.
6
arbitrate.” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.) Thus, in
ruling on a motion to compel arbitration, the court must first determine whether the
parties actually agreed to arbitrate the dispute. (Avery, supra, at p. 59; Gorlach, supra, at
p. 1505.) General principles of California contract law guide the court in making this
determination. (Gorlach, supra, at p. 1505; see Sparks v. Vista Del Mar Child & Family
Services, supra, 207 Cal.App.4th at p. 1518 [“the issue of whether the parties agreed to
arbitration is ordinarily decided under state law”]; Cheng-Canindin v. Renaissance Hotel
Associates (1996) 50 Cal.App.4th 676, 683 [“question of whether the parties agreed to
arbitrate is answered by applying state contract law even when it is alleged that the
agreement is covered by the FAA”].)
“Ordinarily, we review a denial of a petition to compel arbitration for abuse of
discretion. [Citation.] However, where the trial court‟s denial of a petition to arbitrate
presents a pure question of law, we review the order de novo. [Citation.]” (Gorlach v.
Sports Club Co., supra, 209 Cal.App.4th at p. 1505; see Flores v. Axxis Network &
Telecommunications, Inc. (2009) 173 Cal.App.4th 802, 805 [review of order denying
petition to compel arbitration is de novo].)
B. Mendez Was Bound by a Collective Bargaining Agreement
Before we reach the merits of Mid-Wilshire‟s contentions, we address Mendez‟s
assertion that the trial court‟s decision must be affirmed, regardless of the language of the
collective bargaining agreement, because she was not a party to either of the two
collective bargaining agreements relied on by Mid-Wilshire. The record does not support
her assertion.
One of the collective bargaining agreements is between Mid-Wilshire and SEIU
Local 434B and states in Section A of Article 32: “This Agreement shall be effective as
of January 1, 2006 and shall remain in full force and effect through and including
June 15, 2008, and from year to year thereafter: provided, however that either party may
serve written notice on the other at least ninety (90) days prior to the contract expiration
date of its desire to cancel, amend or modify this Agreement.” The other collective
7
bargaining agreement is between Mid-Wilshire and United Long-Term Care Workers‟
Union Local 6434, signed by Mid-Wilshire on June 25, 2009 and the Union trustee and
bargaining committee members on July 15, 2009. This contract covers the period
March 15, 2009 through June 15, 2011.3 The grievance and arbitration provisions in both
agreements are identical.
Mendez argues that neither collective bargaining agreement applies to her claims
because on March 17, 2009, the date Mid-Wilshire terminated her, the first collective
bargaining agreement was no longer in effect and the second collective bargaining
agreement was not yet approved. The first collective bargaining agreement, however,
states that it will remain in effect after June 15, 2008, “from year to year,” unless
terminated on 90 days notice by cancellation, amendment, or modification. There is
nothing in the record indicating that either side ever gave any such notice, or that the first
collective bargaining agreement was not in effect on March 17, 2009. Moreover, while it
is true that Mid-Wilshire had already fired Mendez when the second collective bargaining
agreement was executed, the new agreement applied retroactively to a date prior to
Mendez‟s termination. Mendez does not argue that a collective bargaining agreement
cannot apply retroactively.
Mendez also emphasizes the absence of her signature on the line reserved for her,
as a member of the union bargaining committee, on the second collective bargaining
agreement. The absence of Mendez‟s signature on the second collective bargaining
agreement is inconsequential. Mendez does not deny that she was a member of the
union. In fact, she immediately called her union representative when Aguilar asked to
meet with her in person. The union representative scheduled a meeting with Aguilar,
accompanied her to the meeting, and tried to help Mendez get her job back. Thus, as a
3 There is a minor inconsistency in the second agreement. Although the cover page
states that the beginning date is March 15, 2009, Section A of Article 32 provides, “This
Agreement shall be effective as of March 15, 2008 and shall remain in full force and
effect unless amended by mutual written agreement through the end of the term June 15,
2011 and month to month thereafter provided . . . .”
8
member of the union, Mendez was bound by the terms of the collective bargaining
agreement. (See Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, 1466 [“„a
member of a bargaining unit is bound by the terms of a valid collective bargaining
agreement, though he is not formally a party to it and may not even belong to the union
which negotiated it‟”].)
C. Arbitrability of FEHA Claims
Mid-Wilshire contends that the trial court erred by determining that Mendez‟s
FEHA claims are not arbitrable. We agree with the trial court that the arbitration
agreement in the collective bargaining agreement does not apply to Mendez‟s FEHA
claims.
In Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70 [119 S.Ct. 391,
142 L.Ed.2d 361] (Wright) the Supreme Court held that the presumption that disputes
arising out of collective bargaining agreements are arbitrable does not apply to statutory
violations and that a requirement to arbitrate statutory claims in a collective bargaining
agreement must be “particularly clear.” (Id. at p. 79.) The Supreme Court also held that
a waiver of an employee‟s right to have employment discrimination claims heard in a
judicial forum must be “clear and unmistakable,” and that the court will not infer from a
general contractual arbitration provision an intent to waive the statutorily protected right
to a judicial forum unless the waiver is “explicitly stated.” (Id. at p. 80; see also
Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708 [103 S.Ct. 1467, 75 L.Ed.2d
387] [waiver by union of a statutorily protected right must be explicit, clear, and
unmistakable].) More recently, in 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247 [129
S.Ct. 1456, 173 L.Ed.2d 398] (14 Penn Plaza), the Supreme Court stated that “[t]his
Court has required only that an agreement to arbitrate statutory antidiscrimination claims
be „explicitly stated‟ in the collective-bargaining agreement.” (Id. at p. 258, quoting
Wright, supra, at p. 80; accord, Harris v. Bingham McCutchen LLP (2013) 214
Cal.App.4th 1399, 1408; see Wade v. Ports America Management Corp. (2013) 218
Cal.App.4th 648, 654, fn. 2.)
9
Vasquez followed Wright.4 The Vasquez court stated: “Although ordinarily a
presumption of arbitrability applies to contractual disputes arising out of a collective
bargaining agreement, the presumption is not applicable to statutory violations.
([Wright], supra, 525 U.S. at pp. 78-79 . . . .) Indeed a requirement to arbitrate statutory
claims „must be particularly clear.‟ (Id. at p. 79 . . . .) A union-negotiated waiver of
employees‟ statutory rights to a judicial forum for claims of employment discrimination
must be „“clear and unmistakable.”‟ (Id. at p. 80 . . . .) . . . „[T]he right to a . . . judicial
forum is of sufficient importance to be protected against less-than-explicit union waiver
in a [collective bargaining agreement].‟ (Ibid.)” (Vasquez, supra, 80 Cal.App.4th at
p. 434.) The Vasquez court further stated: “„Broad, general language is not sufficient to
meet the level of clarity required to effect a waiver in a [collective bargaining
agreement]. In the collective bargaining context, the parties “must be particularly clear”
about their intent to arbitrate statutory discrimination claims.‟ [Citation.] A waiver in a
collective bargaining agreement is sufficiently clear if it is found in an explicit arbitration
clause. „Under this approach, the [collective bargaining agreement] must contain a clear
and unmistakable provision under which the employees agree to submit to arbitration all
[state and federal statutory] causes of action arising out of their employment.‟ [Citation.]
A waiver in a collective bargaining agreement may also be sufficiently clear if broad,
nonspecific language in the arbitration clause is coupled with „an “explicit incorporation
of statutory antidiscrimination requirements” elsewhere in the contract. [Citation.] If
another provision, like a nondiscrimination clause, makes it unmistakably clear that the
discrimination statutes at issue are part of the agreement, employees will be bound to
arbitrate their [state and federal statutory] claims.‟ [Citation.] A simple agreement not to
4 The Vasquez court stated: “We are aware of no California authority on the waiver
sufficiency issue. However, the United States Supreme Court has recently addressed this
issue in [Wright], supra, 525 U.S. at pages 79-81 . . . , and a number of federal courts
have applied the holding of Wright to various collective bargaining agreement provisions.
It is appropriate to apply federal law to this situation.” (Vasquez, supra, 80 Cal.App.4th
at p. 434.)
10
engage in acts violative of a particular statute will not suffice; the agreement must
establish the intent of the parties to incorporate „in their entirety‟ the discrimination
statutes. [Citation.]” (Vasquez, supra, at p. 435, fns. omitted; see Peabody Holding Co.,
LLC v. United Mine Workers (4th Cir. 2012) 665 F.3d 96, 102 [“[t]he „clear and
unmistakable‟ standard is exacting”]; Eastern Associated Coal Corp. v. Massey (4th Cir.
2004) 373 F.3d 530, 534 [“[w]hile it is . . . possible to meet the clear and unmistakable
waiver standard of [Wright], it is not easy”].)
Under Wright, 14 Penn Plaza, and Vasquez, the collective bargaining agreement in
this case does not contain a clear and unmistakable agreement to arbitrate statutory
discrimination claims. The arbitration provision in the collective bargaining agreement
between Mid-Wilshire and the union contains very general language regarding
grievances. It does not mention FEHA, it does not explicitly incorporate by reference
any statutory anti-discrimination laws, and it does not contain an explicit waiver of the
right to seek judicial redress for statutory discrimination causes of action. Nothing in the
agreement makes noncompliance with FEHA subject to the arbitration provision. (See
Flores v. Axxis Network & Telecommunications, Inc., supra, 173 Cal.App.4th at p. 806;
Vasquez, supra, 80 Cal.App.4th at pp. 434-435; see also Marcario v. County of Orange
(2007) 155 Cal.App.4th 397, 404, 405 [several California cases have held that “an
employee could not be compelled even to participate in an arbitration proceeding
mandated by a collective bargaining agreement, if the claims at issue are based upon state
statutes,” unless the agreement to arbitrate such claims is “clear and unmistakable”];
Jonites v. Exelon Corp. (7th Cir. 2008) 522 F.3d 721, 725 [collective bargaining
agreement did not contain an explicit waiver of right to sue under the Fair Labor
Standards Act]; Meyer v. Irwin Industries, Inc. (C.D.Cal. 2010) 723 F.Supp.2d 1237,
1247 [collective bargaining agreement did not clearly or unmistakably require arbitration
of state law claims].) In the absence of any “clear and unmistakable,” “particularly
clear,” or “explicitly stated” reference to arbitrating statutory discrimination claims in the
agreement, Mendez is not required to arbitrate her statutory claims.
11
Mid-Wilshire points to Article 15 of the collective bargaining agreement, entitled
“EQUAL OPPORTUNITY,” which states that “[i]t is the policy of the Employer and the
Union to be in compliance with all City, County, State and Federal regulations relative to
discrimination,” to Article 21, which states that “[t]he employer agrees to abide by
applicable Federal and State laws and regulations and local ordinances” and to Article 25,
which states that “[e]mployees are entitled to be treated with respect and dignity at all
times.” Mid-Wilshire argues that this language in the collective bargaining agreement
“expressly addresses statutory discrimination” and “should be interpreted such that the
grievance procedure (including binding arbitration) applies to [Mendez‟s] claims of
statutory discrimination.”
The court in Vasquez did state that even a “broad, nonspecific” arbitration clause
could include statutory discrimination claims if it “is coupled with „an “explicit
incorporation of statutory antidiscrimination requirements” elsewhere in the contract.‟”
(Vasquez, supra, 80 Cal.App.4th at p. 435.)5 The collective bargaining agreement here,
however, contains no such explicit incorporation. Neither Article 15, Article 21, nor
Article 25 explicitly incorporates any of the provisions of FEHA prohibiting disability
discrimination, age discrimination, and failure to provide reasonable accommodation.
The general reference to complying with and abiding by all state and local discrimination
5 This part of the Vasquez opinion comes not from Wright, but from a Fourth Circuit
case, Carson v. Giant Food, Inc. (4th Cir. 1999) 175 F.3d 325, 331-332, interpreting the
Supreme Court‟s decision in Wright. (See Vasquez, supra, 80 Cal.App.4th at p. 435.)
This alternative formulation of the collective bargaining agreement waiver test has been
widely followed in the Fourth Circuit but much less so in other jurisdictions. In Flores,
the only reported California decision after Vasquez where the employer argued that
statutory claims (in that case for violations of prevailing wage laws) were arbitrable
because of a broad arbitration clause coupled with explicit incorporation of statutes, the
court found that the statutory claims were not arbitrable. (See Flores v. Axxis Network &
Telecommunications, Inc., supra, 173 Cal.App.4th at pp. 809-811.) The court in Flores
also stated that the “Vasquez court did not purport to state exclusive considerations for
deciding whether a claim was arbitrable under a particular agreement. Nor did the
Vasquez court purport to address the question of which factors, if any, would clearly
demonstrate the opposite—that a particular issue was not arbitrable.” (Id. at p. 809.)
12
laws is not an explicit incorporation of FEHA. (See Brown v. ABF Freight Systems, Inc.
(4th Cir. 1999) 183 F.3d 319, 322 [although provision in collective bargaining agreement
providing that the employer will not discriminate “against any individual „with respect to
hiring, compensation, terms or conditions of employment‟ . . . may parallel, or even
parrot, the language of federal antidiscrimination statutes and prohibit some of the same
conduct, . . . none of those statutes is thereby explicitly incorporated into the
agreement”].) At a minimum, the agreement must specify the statutes for which claims
of violation will be subject to arbitration. (See Ibarra v. United Parcel Service (5th Cir.
2012) 695 F.3d 354, 359-360 [“courts have concluded that for a waiver of an employee‟s
right to a judicial forum for statutory discrimination claims to be clear and unmistakable,
the [collective bargaining agreement] must, at the very least, identify the specific statutes
the agreement purports to incorporate or include an arbitration clause that explicitly refers
to statutory claims”]; Bratten v. SSI Services, Inc. (6th Cir. 1999) 185 F.3d 625, 631
[“post-Wright courts appear to be in agreement that a statute must specifically be
mentioned in a [collective bargaining agreement] for it to even approach Wright‟s „clear
and unmistakable‟ standard”]; cf. Safrit v. Cone Mills Corp. (4th Cir. 2001) 248 F.3d 306,
307, 308 [section in collective bargaining agreement stating that the parties agree “„that
they will abide by all the requirements of Title VII of the Civil Rights Act of 1964‟” and
that “„[u]nresolved grievances arising under this Section are the proper subjects for
arbitration‟” was a general arbitration clause coupled with an “„unmistakably clear‟”
provision that discrimination statutes are part of the agreement].) The collective
bargaining agreement here does not identify any specific statute.
Under Mid-Wilshire‟s theory, a collective bargaining agreement that contained a
broad arbitration clause coupled with general language about complying with the law
would pass the clear and unmistakable waiver test. That is not a fair reading of Wright,
14 Penn Plaza, and Vasquez. Here, as in Vasquez, “there is a contractual commitment
not to discriminate . . . but there is no express provision that the antidiscrimination
commitment is subject to the grievance and arbitration provisions,” nor is FEHA “even
mentioned.” (Vasquez, supra, 80 Cal.App.4th at p. 436.) Mendez‟s claims are not
13
arbitrable under the broad arbitration clause coupled with explicit incorporation
elsewhere theory.
Mid-Wilshire argues that “the holding in Vasquez has been overturned by recent
United States Supreme Court decisions,” such as Concepcion. Mid-Wilshire argues that
the “Supreme Court‟s decision in [Concepcion] . . . calls into question any state law that
thwarts arbitration based on the type of claim being sought,” and that “Vasquez is a state
law which thwarts arbitration with respect to certain types of claim[s], i.e., statutory
claims of discrimination.” Therefore, Mid-Wilshire asserts, “Vasquez has been implicitly
overruled by the United States Supreme Court in [Concepcion].”6
Mid-Wilshire does not suggest, however, that Wright and 14 Penn Plaza have
been overruled, and we see no basis for reaching such a conclusion. Post-Concepcion
federal and California cases continue to cite Wright, 14 Penn Plaza, and even Vasquez.
(See, e.g., City of Los Angeles v. Superior Court (2013) 56 Cal.4th 1086, 1103 [citing but
distinguishing Wright]; Wade v. Ports America Management Corp., supra, 218
Cal.App.4th at p. 654, fn. 2 [citing 14 Penn Plaza and Wright]; Choate v. Celite Corp.
(2013) 215 Cal.App.4th 1460, 1465 [citing Vasquez and 14 Penn Plaza for the
proposition that “a collective bargaining agreement validly waives a union member‟s
right to litigate federal or state claims in a judicial forum only if the waiver is clear and
unmistakable”]; Harris v. Bingham McCutchen LLP, supra, 214 Cal.App.4th at p. 1408
[citing 14 Penn Plaza and Wright]; Ibarra v. United Parcel Service, supra, 695 F.3d at
pp. 356-360 [citing 14 Penn Plaza and Wright].) As the court stated in Harris, footnote
six of Justice Scalia‟s opinion in Concepcion “suggests the Supreme Court would
6 Concepcion involved the issue of “whether the FAA prohibited States from
conditioning the enforceability of certain arbitration agreements on the availability of
classwide arbitration procedures.” (Concepcion, supra, 131 S.Ct. at p. 1744.) The
Supreme Court held that “[r]equiring the availability of classwide arbitration interferes
with the fundamental attributes of arbitration and thus creates a scheme inconsistent with
the FAA.” (Id. at pp. 1748, 1753.)
14
approve of the requirement . . . that contractual waivers of statutory antidiscrimination
litigation rights must be expressly stated to be enforceable.” (Harris, supra, at p. 1408.)7
D. Arbitrability of Mendez’s Remaining Claims
The trial court denied Mid-Wilshire‟s motion to compel arbitration of all of
Mendez‟s claims, statutory and common law. Because the collective bargaining
agreement did not clearly and unmistakably refer Mendez‟s statutory discrimination
claims to arbitration, the trial court properly denied Mid-Wilshire‟s motion to compel
arbitration of those claims. With respect to Mendez‟s common law claims, Mid-Wilshire
has not presented any legal argument that the trial court‟s denial of Mid-Wilshire‟s
motion to compel arbitration of those claims was erroneous. We therefore deem any
claim of error forfeited. (See In re Sade C. (1996) 13 Cal.4th 952, 994; Aguayo v. Amaro
(2013) 213 Cal.App.4th 1102, 1109; Gunn v. Mariners Church, Inc. (2008) 167
Cal.App.4th 206, 218.)
7 Justice Scalia wrote: “Of course States remain free to take steps addressing the
concerns that attend contracts of adhesion—for example, requiring class-action-waiver
provisions in adhesive arbitration agreements to be highlighted. Such steps cannot,
however, conflict with the FAA or frustrate its purpose to ensure that private arbitration
agreements are enforced according to their terms.” (Concepcion, supra, 131 S.Ct. at
p. 1750, fn. 6.)
15
DISPOSITION
The order is affirmed. Mendez is to recover her costs on appeal.
SEGAL, J.*
We concur:
PERLUSS, P. J.
ZELON, J.
* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
16