California Court of Appeals, First District, First Division
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
San Mateo County Super. Ct. No. CIV505781
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Morgan, Lewis & Bockius, L. Julius M. Turman, Philip J. Smith; Fine, Boggs & Perkins, John P. Boggs, Davis A. Hosilyk and Ian G. Robertson for Defendants and Appellants.
Law Offices of David S. Seacrest and David S. Seacrest for Plaintiff and Respondent.
Margulies, Acting P.J.
Plaintiff Sean Gloster filed an employment-related lawsuit against his former employer, defendant Melody Toyota (Melody), Melody’s parent corporation, other employees, and a third party. Although Melody and its related defendants warned Gloster prior to his filing of the lawsuit they would insist on arbitration under his employment agreement, the defendants waited until a year after the complaint was filed before petitioning the trial court to compel arbitration, filing a motion for summary judgment along with the petition. The trial court denied both the motion and the petition, reasoning defendants had waived the right to arbitration by their delay and the joinder of the third party created a risk of inconsistent rulings. We conclude the denial of the summary judgment motion is not appealable
and dismiss the appeal to the extent it seeks review of this order, but we reverse the trial court’s denial of the petition to compel arbitration.
Gloster is a former employee of Melody, a subsidiary of defendant Sonic Automotive, Inc. (Sonic). In May 2011, Gloster filed suit against Melody, Sonic, and other defendants. The first amended complaint, filed the next month, alleged causes of action for retaliation, constructive termination, and other claims related to Gloster’s employment. In July, all of the defendants except Toyota Motor Sales, U.S.A., Inc. (Toyota) filed a joint answer to the first amended complaint, asserting as an affirmative defense, among others, that Gloster was required to arbitrate his claims. The Melody defendants took no immediate action to enforce their claimed right to arbitrate, but in their first case management statement, dated September 13, 2011, they informed the court they would be “filing a Motion for Summary Judgment on the issue of whether Plaintiff has waived his rights to bring these claims and in the alternative for an Order compelling Plaintiff to binding arbitration pursuant to the parties’ written arbitration agreement.”
The prior month, Toyota, which was alleged in the complaint to be “Toyota’s U.S. sales and marketing arm” and to have “acted in concert” with the Melody defendants, had filed a demurrer, arguing the complaint failed to state a claim against it because Toyota was not alleged to be Gloster’s employer and the complaint contained no allegation of wrongful acts by Toyota employees. For reasons that are not entirely clear, Gloster filed no response to the demurrer until December, when he attempted to file a second amended complaint. Although the court clerk initially rejected the filing, the second amended complaint was deemed filed nunc pro tunc in a stipulated order entered in January 2012.
In January and February, respectively, the Melody defendants and Toyota filed separate answers to the second amended complaint. Both answers contained the arbitration-related affirmative defense mentioned above. The Melody defendants reiterated their intent to petition to compel arbitration in case management statements filed in January and March. At the March case management conference, a trial date was set for December 2012.
In May 2012, the Melody defendants and Toyota filed a joint motion for summary judgment or, in the alternative, petition to compel arbitration (motion/petition). As ...