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Judge v. Nijjar Realty, Inc.

California Court of Appeals, Second District, Seventh Division

December 17, 2014

GERMAINE JUDGE, Plaintiff and Appellant,
v.
NIJJAR REALTY, INC., et al., Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, No. BC460592 Ruth Ann Kwan, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

The Dion-Kindem Law Firm, Peter R. Dion-Kindem, Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. Blanchard, III, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Christopher S. Andre and Ronald W. Novotny for Defendants and Respondents.

OPINION

SEGAL, J.[*]

INTRODUCTION

Plaintiff Germaine Judge appeals from an order vacating an interim arbitration award. Although an order vacating a final arbitration award is appealable under Code of Civil Procedure[1] section 1294, subdivision (c), the order from which Judge appeals vacated a “clause construction award” that did not resolve the entire arbitration. Instead, the arbitrator’s award determined only, as a threshold matter, that Judge’s class and representative claims were subject to arbitration. The clause construction award did not rule on the merits of those claims. We conclude that, because the arbitrator has not ruled on any of the substantive issues in the arbitration, the order from which Judge appeals did not vacate a final arbitration award and is not appealable. We therefore dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Nijjar Realty, Inc., doing business as PAMA Management Company, (Nijjar Realty) is in the business of real estate property management. Mike Nijjar is

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the owner and a president of Nijjar Realty. Swarnjit S. Nijjar and Daljit Kler are also presidents of Nijjar Realty. On October 18, 2010 Nijjar Realty hired Judge as a resident property manager. Judge’s employment with Niijar Realty continued until April 22, 2011, when Nijjar Realty terminated her employment.

A. Judge Files This Action and a Related Class Action

On May 6, 2011 Judge filed this action (case No. BC460592, the “individual/PAGA action”). Her first amended complaint alleged various employment-related and Labor Code causes of action, including claims for unpaid compensation, meal and rest period premiums, waiting time penalties, and wrongful termination. Under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code § 2698 et. seq.) Judge alleged similar and related causes of action on behalf of herself and other aggrieved employees. On February 14, 2012 Judge filed a class action (Judge v. Nijjar Realty Inc. (Super. Ct. L.A. County, No. BC478836); the class action”) against three defendants, Nijjar Realty, Mike Nijjar, and Daljit Kler (the Nijjar defendants), alleging six similar employment and Labor Code claims on behalf of herself and the class members.[2]

On April 9, 2012 the trial court determined that the individual/PAGA action and the class action were related cases within the meaning of Los Angeles Superior Court former rule 7.3(f) (now rule 3.3(f)) and designated the individual/PAGA action as the lead case. The court denied Judge’s subsequent ex parte application to consolidate the two cases.[3] The court never consolidated the two actions.

B. The Trial Court Grants the Nijjar Defendants’ Petitions To Compel Arbitration of Judge’s Individual Claims Only and Stays Both Cases

In April 2012 the Nijjar defendants filed a petition in the individual/PAGA action to compel arbitration of Judge’s claims and staying the action pending completion of arbitration. The petition was based on an arbitration agreement that Judge had signed while she was an employee of Nijjar Realty. The arbitration agreement provides, in relevant part, “By accepting employment

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with Atlas Resources/Client, [4] the undersigned agrees to submit any and all previously unasserted claims, disputes, lawsuits or controversies arising out of or relating to his or her application or candidacy for employment, his or her employment, or the cessation of his or her employment to binding arbitration before a neutral and unbiased arbitrator.” The arbitration agreement contained multiple references to the American Arbitration Association (AAA), indicating that arbitration would be before the AAA. Although the arbitration agreement did not mention the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) or the California Arbitration Act (CAA) (§ 1280 et seq.), the Nijjar defendants’ maintained that the arbitration agreement was governed by the FAA because Nijjar Realty made purchases from states other than California and thus was engaged in interstate commerce within the meaning of the FAA.

The Nijjar defendants also filed a petition to compel arbitration of and to stay the class action. Again relying on the FAA, they asked the trial court “to compel the arbitration [of] Plaintiff’s claims against them on an individual and not a class-wide basis” and to stay the action “pending the completion of arbitral proceedings.” Citing AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ [179 L.Ed.2d 742, 131 S.Ct. 1740] and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 [176 L.Ed.2d 605, 130 S.Ct. 1758] (Stolt-Nielsen), the Nijjar defendants asked that “arbitration be ordered as an individual as opposed to a collective basis....” They argued that the arbitration agreement “contain[s] no basis at all for authorizing class arbitration proceedings, thereby requiring that Plaintiff be compelled to arbitrate her claims against Defendants individually and not as part of a class action.”

Judge opposed both petitions to compel arbitration. In both cases Judge argued, among other things, that the FAA did not govern the arbitration agreement. In the class action Judge argued that if the court were inclined to grant the petition the court “must send all of the claims asserted by Plaintiff to arbitration, including the PAGA claims and the class action claims.”

On September 11, 2012 the trial court held a hearing on the Nijjar defendants’ petitions to compel arbitration. At that hearing the following exchange occurred between counsel and the court:

“[Counsel for Judge]: Your Honor, with respect to the PAGA action and also the class action, there’s no arbitration or collective action or representative action proscription in the arbitration agreement. It doesn’t say you can

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only file an individual action, you can’t file a class action, you can’t file a representative action. And the arbitration agreement as you noted in your order is very broad, includes all claims of any nature. There are many cases that hold that the issue is to the extent that the claims to be arbitrated when there’s been no actual waiver of class action. It’s up to the arbitrator. That’s exactly what the [American Arbitration Association (AAA)] arbitration rules say, that the arbitrator decides the scope of the arbitrable claims. And that’s what the arbitrator should decide. If they’re saying ...


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