California Court of Appeals, First District, Third Division
City & County of San Francisco No. 513013 Hon. Harold E. Kahn Judge.
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Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny, Robert R. Roginson and Amber M. Solano for Defendant and Appellant.
Scott Cole & Associates, Matthew R. Bainer and Molly A. DeSario for Plaintiff and Respondent.
Defendant Inter-Con Security Systems, Inc. (Inter-Con) appeals from an order denying its petition to compel arbitration of a putative wage and hour class action filed by plaintiff Brian Bower. Inter-Con contends the trial court erred in finding that it waived its right to compel arbitration by engaging in litigation conduct inconsistent with the right to demand arbitration. Inter-Con further argues that Bower’s claims should be arbitrated and that the arbitration should be limited in scope to Bower’s individual claims in light of a waiver of class claims contained in the parties’
arbitration agreement. Because we conclude there was substantial evidence to support the trial court’s finding of waiver, we affirm the order denying the petition to compel.
Factual and Procedural Background
Bower was employed by Inter-Con as an armed security officer from April 2007 until he was terminated in May 2011. He executed an initial arbitration agreement at the commencement of his employment in which he agreed to submit all disputes with Inter-Con to arbitration. Claims for compensation and wages were expressly covered by the agreement. In May 2008, Bower executed a second arbitration agreement (hereafter arbitration agreement) with Inter-Con that superseded the first agreement. The second arbitration agreement was similar in most respects to the first agreement except that it also contained a clause in which Bower agreed not to assert claims against Inter-Con on behalf of a class or in a representative capacity. It also specified that the parties agreed to arbitrate claims for breaks and rest periods.
Bower filed the lawsuit that gives rise to this appeal in August 2011. The lawsuit was filed as a putative class action and included causes of action against Inter-Con for (1) failure to provide meal and rest periods, (2) unlawful failure to pay wages, (3) failure to provide accurate itemized wage statements, (4) failure to pay wages upon termination, (5) unfair business practices under the unfair competition act (Bus. & Prof. Code, § 17200 et seq.), and (6) a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.). Bower defined the putative class as “[a]ll persons who are and/or were employed as non exempt Armed Security Guards by Inter-Con Security Systems, Inc. within the State of California between August 2, 2007 and the present.” (Italics omitted.)
Instead of filing a petition to compel arbitration, Inter-Con filed an answer to the complaint in October 2011. As an affirmative defense, Inter-Con asserted that Bower’s claims were subject to arbitration.
Before Inter-Con had even filed its answer, Bower had already propounded discovery in early October 2011, including special interrogatories, document production requests, and form interrogatories. On December 5, 2011, Inter-Con served formal responses to Bower’s discovery. Inter-Con objected to the discovery requests on the ground the arbitration agreement required Bower to pursue his claims in arbitration and prohibited him from seeking relief on behalf of a class or in a representative capacity. Inter-Con agreed to provide responses and documents only as to Bower in his individual capacity and generally refused to provide information relating to other persons in the
putative class. However, Inter-Con provided at least one substantive response relating to class issues. Specifically, in response to a special interrogatory concerning the number of class members employed by Inter-Con during the class period, Inter-Con responded that it had employed 29 armed security officers in California that fit the class definition.
On the same date Inter-Con responded to Bower’s discovery, it also propounded its own discovery on Bower. The discovery sought by Inter-Con consisted in part of 102 document requests. Although the majority of the document requests related to Bower’s individual claims, a substantial number—46, according to Bower—sought documents pertaining to the entire putative class of armed security guards.
Within weeks of Bower’s receipt of Inter-Con’s discovery responses, the parties agreed to informally stay discovery in order to pursue class-wide settlement discussions. Inter-Con replaced its counsel in ...