Opinion
E066982
05-11-2018
KEANE WILLIAMS, Plaintiff and Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, Defendant and Respondent.
Stevens & McMillan, Daniel P. Stevens, Heather K. McMillan and Kimberly H. Whang for Plaintiff and Appellant. Littler Mendelson and Lena K. Sims for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1502996) OPINION APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Dismissed. Stevens & McMillan, Daniel P. Stevens, Heather K. McMillan and Kimberly H. Whang for Plaintiff and Appellant. Littler Mendelson and Lena K. Sims for Defendant and Respondent.
Plaintiff and appellant Keane Williams appeals from an order denying his motion to vacate an arbitration award. In his motion, he contended that the arbitrator erroneously held that his claim was time-barred and ignored an applicable tolling statute—Code of Civil Procedure section 1281.12—that rendered the action timely.
Plaintiff acknowledges that an order denying a motion to vacate an arbitration award is not appealable. However, he asks us to treat his appeal as a petition for a writ of mandate. For the reasons we discuss below, we decline to exercise our discretion to treat the appeal as a mandate proceeding. Accordingly, we will dismiss the appeal.
BACKGROUND
Plaintiff went to work for defendant and respondent BCI Coca-Cola Bottling Company of Los Angeles (BCI) in 2005. His employment was terminated on December 12, 2013. He filed a claim for employment discrimination with the Department of Fair Employment and Housing, and on July 15, 2014, the department issued a right to sue letter. On March 5, 2015, plaintiff filed a lawsuit in the Superior Court of San Bernardino County, apparently alleging employment discrimination and wrongful termination, as well as other causes of action. (The record on appeal does not include the complaint.) On May 27, 2015, BCI filed a motion to compel arbitration, pursuant to the dispute resolution agreement pertaining to plaintiff's employment with BCI.
After the matter was submitted to arbitration, the arbitrator granted BCI's motion for summary disposition, finding that the action was time-barred under the terms of the dispute resolution agreement. The arbitrator found that Code of Civil Procedure section 1281.12 does not apply because the dispute resolution agreement provided that it was governed by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). Code of Civil Procedure section 1281.12 is part of the California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.), and the arbitrator concluded that it is preempted by the FAA. The arbitrator also rejected plaintiff's other contentions that the action was not time-barred.
On August 8, 2016, plaintiff filed a motion to vacate the arbitration award. On September 8, 2016, the trial court denied the motion. On the same date, the court also denied BCI's request to confirm the award, which BCI had submitted as part of its opposition to plaintiff's motion to vacate. The court held that confirmation was "neither necessary or appropriate."
On October 3, 2016, plaintiff filed a notice of appeal.
LEGAL ANALYSIS
Plaintiff's contention that we should treat his appeal as a petition for writ of mandate rests on the following premise: Under the CAA, an order denying a motion to vacate an arbitration award is not appealable. (Code Civ. Proc., § 1294.) It is also not appealable under the FAA. (9 U.S.C. § 16.) Under both California and federal arbitration statutes, when a trial court denies a motion to vacate an arbitration award, the court is required to enter an order confirming the award. (Code. Civ. Proc., § 1286; 9 U.S.C. § 9.) That order becomes the appealable judgment. (Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1453-1454.) Here, rather than confirming the award, the trial court denied BCI's motion to confirm the award, leaving plaintiff without an appealable judgment and therefore without an adequate remedy at law. He asserts that because he has no remedy at law, we should treat this appeal as a petition for writ of mandate.
Code of Civil Procedure section 1294 provides:
"An aggrieved party may appeal from:
"(a) An order dismissing or denying a petition to compel arbitration.
"(b) An order dismissing a petition to confirm, correct or vacate an award.
"(c) An order vacating an award unless a rehearing in arbitration is ordered.
"(d) A judgment entered pursuant to this title.
"(e) A special order after final judgment."
Title 9 United States Code section 16 provides:
"(a) An appeal may be taken from—
"(1) an order—
"(A) refusing a stay of any action under section 3 of this title,
"(B) denying a petition under section 4 of this title to order arbitration to proceed,
"(C) denying an application under section 206 of this title to compel arbitration,
"(D) confirming or denying confirmation of an award or partial award, or
"(E) modifying, correcting, or vacating an award;
"(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or
"(3) a final decision with respect to an arbitration that is subject to this title.
"(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—
"(1) granting a stay of any action under section 3 of this title;
"(2) directing arbitration to proceed under section 4 of this title;
"(3) compelling arbitration under section 206 of this title; or
"(4) refusing to enjoin an arbitration that is subject to this title."
Code of Civil Procedure section 1286 provides: "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding."
Title 9 United States Code section 9 provides, in pertinent part: "If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made."
Plaintiff did not, however, exhaust his legal remedies in the trial court. At oral argument, he conceded that he could have filed his own motion to confirm the award in order to obtain an appealable judgment. If he had done so and the trial court still refused to confirm the award, plaintiff could then have filed a petition for writ of mandate to compel the trial court to confirm the award. Plaintiff did not do so, however, and we are not persuaded that we should simply proceed directly to the merits of plaintiff's arguments for reversal of the arbitration award.
In Mid-Wilshire Associates v. O'Leary, supra, 7 Cal.App.4th 1450, the court held that denial of a petition to vacate an arbitration award "may be had upon appeal from the judgment of confirmation or by writ of mandate." (Id. at p. 1455.) The opinion cites no authority that mandate lies to review the denial of a petition to vacate an arbitration award, however, and we are not aware of any such authority. In any event, plaintiff does not rely on that case to assert that mandate ordinarily lies to permit review of an order denying a petition to vacate an arbitration award. --------
Although an appellate court has the discretion to treat an appeal from a nonappealable order as a petition for a writ of mandate, courts should do so only in unusual cases where the interests of justice will be best served by that procedure. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) Except in unusual cases, "[t]he interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders." (Mid-Wilshire Associates v. O'Leary, supra, 7 Cal.App.4th at pp. 1455-1456.) Because plaintiff has not attempted to exhaust his remedies in the trial court and makes no showing as why we should excuse that failure and proceed to review the merits of his contentions, we see no justification for exercising our discretion to treat an appeal as a writ proceeding. (Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770.)
DISPOSITION
The appeal is dismissed. BCI Coca-Cola Bottling Company of Los Angeles is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.