Opinion
A146819
04-16-2018
SERVANDO PEREZ, Plaintiff and Respondent, v. STANDARD DRYWALL, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15761142)
Defendant Standard Drywall, Inc. (SDI) appeals an order denying its petition to compel arbitration against plaintiff Servando Perez (Perez). SDI contends the trial court erred in denying the petition because: (1) Perez's opposition to the petition was untimely, and therefore the allegations of the petition should have been deemed admitted; (2) Perez's statutory claims under the Labor Code were encompassed within the arbitration provisions of SDI's three collective bargaining agreements (CBA's), but the trial court erroneously limited its analysis to only one of the CBA's; and (3) the arbitration provisions do not violate the ruling in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) because Perez may still bring his claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) in arbitration.
In Iskanian, the California Supreme Court held that an arbitration agreement requiring an employee, as a condition of employment, to give up the right to bring representative PAGA actions in any forum is contrary to public policy. (Iskanian, supra, 59 Cal.4th at p. 360.)
We conclude, as the trial court did, that only one of the CBA's submitted by SDI was applicable to Perez, and this CBA did not "clearly and unmistakably" waive Perez's right to bring his Labor Code claims in a judicial forum. Accordingly, we affirm.
BACKGROUND
SDI is a union construction contractor performing carpentry work in California and throughout the western United States. SDI's employees in California work under three CBA's entered into on their behalf by the Carpenters 46 Northern California Counties Conference Board of the United Brotherhood of Carpenters and Joiners of America (Northern California Conference Board), and the Southwest Regional Council of Carpenters and its affiliated unions (Southwest Regional Council). The three CBA's are: (1) the Northern California Drywall/Lathing Master Agreement; (2) the Southern California Master Labor Agreement; and (3) the Southwest Drywall/Lathing Master Agreement. We first describe the pertinent portions of the CBA's before turning to our analysis of the issues raised on appeal.
Northern California Drywall/Lathing Master Agreement
This CBA, effective July 1, 2011, to July 31, 2015, was between the Wall and Ceiling Alliance (WACA) and the Northern California Conference Board, and covered drywall and lathing construction work performed in 46 Northern California counties, including but not limited to Alameda, Contra Costa, San Francisco, San Mateo, and Santa Clara. The grievance and dispute resolution provisions are found in article 9, which establishes a "Joint Adjustment Board" consisting of representatives selected by WACA and the union, as well as a "permanent neutral arbitrator" who participates in the proceedings. Under section 1 of article 9, "any dispute, grievance or question concerning the application or interpretation of this Agreement shall be determined in accordance with the provisions of this Article. Disputes concerning . . . the proper payment of wages or any other alleged violation of the Agreement may, at the option of any party hereto, be submitted to the provisions of this Article . . . ."
Section 4 of article 9 sets forth various provisions regarding how "the Joint Adjustment Board and the permanent neutral arbitrator shall be governed . . . ." Under subdivision (d), "[a]ny employee who claims to have been improperly paid, discharged, or disciplined without just cause shall present his or her grievance to the Union within seven (7) calendar days following the event, and the Union must file its grievance, if any, within five (5) working days." The Joint Adjustment Board must render a decision within 30 days of completion of the proceedings. Decisions of the Joint Adjustment Board or arbitrator are enforceable by petition to confirm an arbitration award filed in the Superior Court of the City and County of San Francisco, or in the United States District Court for the Northern District of California.
Southern California Master Labor Agreement
This CBA, effective 2012 to 2016, was between United General Contractors, Inc. and the Southwest Regional Council, and covered various kinds of construction work within union jurisdiction performed in 12 Southern California counties listed therein. The grievance and dispute resolution provisions are found in article VI. Section 601 et seq. of article VI describe the "Independent Contractors Grievance and Arbitration Trust," which would "establish and administer procedures to process grievances and . . . provide third party independent arbitration on disputes concerning the interpretation or application of this Agreement that may occur between the Contractor and the Union." Through the trust, a panel of independent and neutral arbitrators was established "to hear and determine such grievances and disputes, with authority to issue a final and binding award, including appropriate remedies." "The Contractor and the Union agree to submit all disputes concerning the interpretation or application of the Agreement to arbitration under this Article VI."
Under section 904 of article IX (Holidays, Payment of Wages, Meal Periods), "[t]he parties recognize the applicability of Industrial Welfare Commission Wage Order 16 to work performed under this Agreement. Any alleged violation of Wage Order 16 shall constitute a grievance which shall be recognized under the grievance procedure of this Agreement."
Southwest Drywall/Lathing Master Agreement
This CBA, effective July 1, 2012, to June 30, 2016, was between the Drywall/Lathing Conference of the Western Wall & Ceiling Contractors Association, Inc. (WWCCA) and the Southwest Regional Council, and covered drywall, lathing, plastering, and interior systems construction work in California and the southwestern United States. The grievance and dispute resolution provisions are found in article VIII, which state in relevant part that "any dispute, grievance or question concerning the application or interpretation of this Agreement shall be determined in accordance with the provisions of this Article." Section 2 of article VIII establishes "The Southwest Joint Adjustment Board for the Drywall/Lathing Industry" composed of WWCCA and union representatives and a permanent neutral arbitrator.
Under section 4, subdivision (d), of article VIII, "[a]ny grievance or dispute to be submitted shall be presented to the Joint Adjustment Board by the Union or the Association within thirty (30) days after the complaining party (Employee, Union, Contractor or Association) has actual knowledge of the facts giving rise to the dispute or, when further discovery is necessary, the Union or the Association has made final determination of the facts giving rise to the dispute." The board must decide the matter within 30 days of completion of the proceedings. Decisions of the Joint Adjustment Board or arbitrator are enforceable by petition to confirm an arbitration award filed in the Superior Court or Municipal Court of the City and County of Los Angeles, the United States District Court for the Central District of California, or other court having jurisdiction.
Section 12 of article VI (Jurisdictional Disputes) incorporates Industrial Welfare Commission (IWC) Wage Order 16 and states that "[a]ny alleged violations of Wage Order 16 shall be subject to the grievance and arbitration provisions of Article VIII of this Agreement."
Perez's Employment with SDI
In December 2014, Perez was dispatched from Drywall Lathers Local Union #9144 (Local #9144) in San Jose to work at SDI. He was employed with SDI for no more than two days before he was allegedly terminated.
Procedural History
On March 5, 2015, Perez filed a putative class action complaint against SDI in the Alameda County Superior Court. In his first cause of action, for violation of Labor Code sections 201 and 203, Perez alleges that he was not paid all wages owed immediately on his last date of employment with SDI, and he seeks waiting time penalties under Labor Code section 203. In his second cause of action, for violation of Labor Code section 226, subdivision (a), Perez alleges that SDI failed to provide a complete and accurate wage statement as required by law because SDI's wage statements "failed to identify . . . the inclusive pay period dates and the employer's name and address." In his third and final cause of action, Perez seeks penalties under PAGA for the aforementioned Labor Code violations. Perez also seeks to represent two putative classes of: (1) all SDI employees whose employment involuntarily ended at any time from March 4, 2012, to the present; and (2) all current and former SDI employees who received any wages from SDI during the period from March 5, 2014, to the present.
In April 2015, SDI removed the action to federal court. However, the federal court granted Perez's motion to remand, and the matter was returned to state court in June 2015.
On July 15, 2015, SDI filed and served (by mail) a petition to compel arbitration and for a stay of proceedings, with a hearing date scheduled for September 8, 2015. On August 26, 2015, Perez filed an opposition brief captioned "Plaintiff's Opposition to Defendant's Motion to Compel Arbitration." In its reply brief, SDI argued, among other things, that Perez's opposition was untimely under Code of Civil Procedure section 1290.6, and therefore the allegations of the petition should be deemed admitted.
The hearing was continued to October 8, 2015. In the meantime, Perez applied ex parte for an order allowing him to file a surreply, which the trial court granted over SDI's opposition. In his surreply, Perez argued there was good cause for his untimely opposition because he mistakenly believed the petition was a motion and filed his opposition according to the briefing schedule for motions.
On October 6, 2015, the trial court issued a tentative ruling granting and denying the petition in part. The court found good cause to consider Perez's untimely opposition brief and no prejudice to SDI. The court tentatively denied the petition as to the first cause of action for failure to pay wages immediately upon termination and the third cause of action for PAGA penalties, finding the cited arbitration provisions in the Northern California Drywall/Lathing Master Agreement were too vague to constitute a clear and unmistakable waiver of the right to a judicial forum for these statutory claims. The court also held that under Iskanian, Perez's PAGA claim could not be forced into individual arbitration. The court tentatively granted the petition as to Perez's second cause of action under Labor Code section 226, subdivision (a), finding the Southern California Master Labor Agreement clearly and unmistakably required arbitration of this statutory claim by incorporating IWC Wage Order 16. The court tentatively stayed litigation of the first and third causes of action pending completion of arbitration of the second cause of action.
Following the hearing held on October 8, 2015, the trial court issued its final order denying the petition in full. In so ruling, the court considered only the arbitration provisions in the Northern California Drywall/Lathing Master Agreement because it found that "[a]t the hearing, there was no dispute that the only CBA that applies to Plaintiff's work is the Northern California Counties Conference Board CBA (Petition Ex. 1)," and thus, SDI "effectively conceded that only [the Northern California Drywall/Lathing Master Agreement] applies to Plaintiff's employment." The court's final order otherwise repeated the analysis of its tentative ruling.
At the hearing, SDI's counsel conceded "some merit" to Perez's argument that only the Northern California Drywall/Lathing Master Agreement applied to his individual claims. However, SDI argued that all three CBA's should apply because Perez sought to represent other SDI employees throughout the state, an argument we address below (see part III, infra).
SDI timely appealed. (Code Civ. Proc., § 1294, subd. (a).)
DISCUSSION
I. Applicable Law and Standard of Review
"Pursuant to Code of Civil Procedure section 1281.2, unless the petitioner has waived arbitration, grounds exist for revocation of the agreement, or a party to the arbitration agreement is also a party to a pending matter with a third party and there is a possibility of conflicting rulings on a common issue, the trial court 'shall order' the parties to arbitrate the controversy 'if it determines that an agreement to arbitrate the controversy exists.' " (Amalgamated Transit Union Local 1277 v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 673, 684.) "We apply general California contract law to determine whether the parties formed a valid agreement to arbitrate. [Citations.]" (Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 89.)
"California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) "Although ' " '[d]oubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration[]' " ' [citation], there exists no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate. [Citation.]" (Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 590.)
"Ordinarily, we review a denial of a petition to compel arbitration for abuse of discretion. [Citations.] However, where the trial court's denial of a petition to arbitrate presents a pure question of law, we review the order de novo. [Citations.]" (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.)
II. Perez's Untimely Opposition to the Petition
SDI argues it was error for the trial court to accept Perez's untimely opposition and refuse to deem the allegations of the petition admitted. "The allegations of a petition [to compel arbitration] are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed." (Code Civ. Proc., § 1290.) Code of Civil Procedure section 1290.6 states, in relevant part, that a response to a petition to compel arbitration "shall be served and filed within 10 days after service of the petition," but this deadline may be extended "for good cause, by order of the court." (Code Civ. Proc., § 1290.6.) "[T]he trial court may consider untimely filed and served response papers, when no prejudice to the petitioner is shown, without an order extending the 10-day time period of section 1290.6. [Citations.]" (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847 (Ruiz).)
The trial court's consideration of Perez's untimely opposition brief was a reasonable exercise of its discretion. Perez's counsel demonstrated good cause in that he treated the petition as a motion and filed and served his opposition on August 26, 2015, nine court days before the then-scheduled September 8, 2015 hearing, which would have been timely if the petition were a motion. (See Code Civ. Proc., § 1005, subd. (b).) SDI, too, acted consistently with treating the petition as a motion, by filing a reply brief five court days before the then-scheduled hearing, as reply papers are not contemplated in the California Arbitration Act. (See Code Civ. Proc., § 1280 et seq.) On similar facts, the court in Ruiz found good cause to consider an untimely opposition to a petition to compel arbitration. (Ruiz, supra, 232 Cal.App.4th at pp. 847-848.) SDI did not argue in the proceedings below or on appeal that it was prejudiced in any way, and "the reply papers avoided any prejudice to [SDI] due to [Perez's] late-filed and served response papers." (Id. at p. 848.)
SDI cites several cases for the position that courts consistently deem the allegations in the petition admitted when the response is untimely. (Ronay Family Limited Partnership v. Tweed (2013) 216 Cal.App.4th 830, 838; Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 800; A. D. Hoppe Co. v. Fred Katz Constr. Co. (1967) 249 Cal.App.2d 154, 158; Evans Products Co. v. Millmen's Union No. 550 (1984) 159 Cal.App.3d 815, 819; DeMello v. Souza (1973) 36 Cal.App.3d 79, 83; Coordinated Construction, Inc. v. Canoga Big "A," Inc. (1965) 238 Cal.App.2d 313, 317-318.) These cases are not controlling because they did not involve a showing of good cause or lack of prejudice to the petitioner.
III. Waiver of a Judicial Forum for Statutory Wage Claims in Collective Bargaining Agreements
SDI argues the trial court erred in refusing to compel arbitration of Perez's Labor Code claims because the three CBA's and their arbitration provisions cover all aspects of wage payments to SDI's employees, including payment of wages upon termination and the content of wage statements. SDI contends the trial court was too restrictive in interpreting the CBA's and failed to apply the strong public policy favoring arbitration.
"[W]hen a CBA includes an arbitration provision, contractual matters under a CBA are presumed arbitrable; that is, arbitration must be granted as long as the CBA is reasonably susceptible to an interpretation in favor of arbitration. [Citation.] [¶] However, the presumption of arbitration in a CBA does not apply to statutory violations. [Citations.]" (Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 11-12 (Cortez).) Any CBA requirement to arbitrate an individual's statutory claim must be "clear and unmistakable," and courts will not infer from a general contractual arbitration provision that the parties intended to waive a statutorily protected right to a judicial forum unless the waiver is " ' "explicitly stated." ' " (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 80 (Wright).)
In Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (Vasquez), the court followed Wright in holding that a CBA did not clearly and unmistakably waive the right to a judicial forum for an employee's claims of disability discrimination under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C.S. § 12101 et seq.) and national origin discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). "In determining whether there has been a sufficiently explicit waiver, the courts look to the generality of the arbitration clause, explicit incorporation of statutory antidiscrimination requirements, and the inclusion of specific antidiscrimination provisions. The test is whether a collective bargaining agreement makes compliance with the statute a contractual commitment subject to the arbitration clause. [Citations.]" (Vasquez, supra, at pp. 434-435.) The CBA at issue in Vasquez did not incorporate or even mention disability discrimination, the FEHA, or the ADA, and despite containing a "contractual commitment not to discriminate on the basis of national origin," there was no express provision that the antidiscrimination commitment was subject to the grievance and arbitration provisions. (Id. at p. 436.)
The three CBA's at issue contain general provisions requiring arbitration of disputes "concerning the application or interpretation" of the respective agreements. Perez's Labor Code claims do not concern the application or interpretation of the CBA's; rather, they concern statutory labor protections. It makes no difference that the CBA's contain contractual terms that mirror aspects of the law. Even where a CBA's provisions are "almost identical or even more generous than under state law" or create contractual rights that are "coextensive" with statutory rights, absent a clear and unmistakable incorporation of statutory rights in connection with the grievance and arbitration provisions, it will not be presumed that the parties intended to arbitrate statutory claims. (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 960; Wright, supra, 525 U.S. at p. 79.)
None of the other provisions in the Northern California Drywall/Lathing Master Agreement cited by SDI clearly and unmistakably demonstrate an agreement to arbitrate Perez's Labor Code claims. Article 9, section 1, states that "[d]isputes concerning . . . the proper payment of wages or any other alleged violation of the Agreement" may be submitted to the grievance provisions. We reiterate the trial court's sound reasoning that "in order to give full effect to the phrase 'and any other alleged violation of the [Agreement],' this provision must be interpreted to require arbitration of only those claims alleging violations of some other, substantive provision of the CBA. (Any other reading would render the word 'other' as surplusage.)"
Article 9, section 4(d), states that "[a]ny employee who claims to have been improperly paid, discharged, or disciplined without just cause shall present his or her grievance to the Union within seven (7) calendar days following the event, and the Union must file its grievance, if any, within five (5) working days." However, when properly viewed in context, this section deals with the procedures governing the proceedings before the Joint Adjustment Board and arbitrator. The vague reference to an employee's claim of being "improperly paid" does not satisfy the clear and unmistakable standard, particularly when read in conjunction with section 1, as discussed above.
The arbitration provisions of the Southern California Master Labor Agreement and the Southwest Drywall/Lathing Master Agreement are similarly vague. However, a major difference is that these CBA's expressly incorporate by reference IWC Wage Order 16 and state that any alleged violations of Wage Order 16 are subject to the grievance and arbitration provisions of each respective agreement. In comparison, there is no similar incorporation of IWC Wage Order 16 in the Northern California Drywall/Lathing Master Agreement.
The only reference to the wage order in the Northern California Drywall/Lathing Master Agreement that we have found is a sentence in article 21 (Workday) stating: "The Individual Employer may, at his/her discretion, provide the required ten (10) minute afternoon break immediately after the thirty (30) minute meal period only in compliance with Wage Order 16." However, the provision does not state that disputes over the employer's compliance with Wage Order 16 are subject to the agreement's grievance and arbitration provisions. Furthermore, Perez does not allege violations of the meal and rest break provisions of IWC Wage Order 16 or the Labor Code.
IWC Wage Order 16 applies to "all persons employed in the on-site occupations of construction" (Cal. Code Regs., tit. 8, § 11160, subd. 1) and contains various provisions regarding work hours, overtime, minimum wage, meal and rest periods, and employer record keeping. In its subsection on wage statement information, Wage Order 16 expressly cites Labor Code section 226. (Cal. Code Regs., tit. 8, § 11160, subd. 6(B).) In Cortez, the court found that a CBA requiring arbitration of any dispute or grievance arising from IWC Wage Order 16 was sufficiently clear and unmistakable to waive the employee's right to a judicial forum for his Labor Code claims for overtime pay, meal and rest break violations, and record keeping violations. (Cortez, supra, at pp. 14-15.) The court held that the reference to IWC Wage Order 16 was sufficient, despite no mention of the Labor Code, because an employee can enforce the protections of the wage order in court only by bringing a Labor Code claim. (Id. at p. 14.) However, because IWC Wage Order 16 "makes no mention of payment upon the employee's separation from employment, much less statutory penalties for failure to do so," the Cortez court held that the employee's claim under Labor Code sections 202 and 203 for failure to pay wages in a timely manner following his separation from employment, as well as a related unfair competition claim, were not subject to arbitration. (Id. at p. 15.)
The tentative ruling in the instant case was very similar to the holding of Cortez. Based on statements made at the hearing, however, the trial court changed its tentative ruling and found that only the Northern California Drywall/Lathing Master Agreement should be considered in determining whether there was an agreement to arbitrate Perez's statutory claims. We, too, conclude that this was the only CBA applicable to Perez. By its terms, the Northern California Drywall/Lathing Master Agreement applied to drywall/lathing work performed in the identified Northern California counties during the time of Perez's employment with SDI. SDI acknowledged that the Northern California Conference Board was the collective bargaining representative for carpenter employees in Northern California. SDI further acknowledged that the Northern California Drywall/Lathing Master Agreement "governed employment of . . . members of Drywall Lathers Local Union #9144," and that Perez was dispatched from Local #9144 in San Jose to work at SDI. SDI has never contended that Perez worked outside the geographic boundaries of the Northern California Drywall/Lathing Master Agreement during his brief employment with SDI.
SDI argues the Southwest Drywall/Lathing Master Agreement was also applicable to Perez because it applies to SDI employees throughout the State of California, including Northern California. SDI's only support for this argument consists of two introductory sentences in the Southwest Drywall/Lathing Master Agreement, which state that the Southwest Regional Council entered into the agreement "for and on behalf of their affiliated Local Unions in the State[] of California," and that the contractors were "engaged in Drywall/Lathing/Plastering and Interior Systems construction work in the State of California . . . ." These general statements, without more, do not establish that the Southwest Drywall/Lathing Master Agreement applied to an employee who was dispatched from a San Jose-based union to work in Northern California. SDI does not identify the "affiliated Local Unions" on whose behalf the Southwest Regional Council negotiated this agreement, and SDI acknowledged in its papers that the Southwest Regional Council was "the collective bargaining representative for 'carpenter' and 'drywall' employees in Southern California." (Italics added.) On this record, coupled with SDI's concession at the hearing, we find no error in the trial court's decision not to consider the Southwest Drywall/Lathing Master Agreement.
SDI further contends that the Southwest Drywall/Lathing Master Agreement should apply to Perez because he seeks to represent a class of employees statewide and cannot "cherry-pick[]" one regional CBA for the purpose of avoiding arbitration. In support, SDI cites Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866 (Basurto), a case that had nothing to do with putative class actions, CBA's, or arbitration. As the trial court correctly noted, "[t]he fact that members of the putative class may be subject to arbitration agreements in other agreements is not relevant to this [petition], but will be relevant at the class certification stage." This statement echoes the holding in Lee v. Southern California University for Professional Studies (2007) 148 Cal.App.4th 782 (Lee). In that case, a former student of a private postsecondary institution brought a putative class action against the school for violating consumer protection laws. In seeking to compel arbitration, the school argued the plaintiff was required to arbitrate her claims because some members of the potential class signed arbitration agreements. (Id. at pp. 785-786.) The court held that no grounds existed for compelling arbitration because the plaintiff could not be bound by someone else's consent. (Id. at p. 786.) "At the moment, the only plaintiff before the court is Lee, who did not sign an arbitration agreement. [The school's] arguments are premised on the notion that a class will eventually be certified as to the [Consumer Legal Remedies Act] claim, and that class will include all students, regardless of whether or not they signed arbitration agreements. That has not yet happened, and Lee represents nobody but herself until a class is certified." (Ibid.)
In Basurto, the court held that a plaintiff could not circumvent the collateral estoppel effect of a prior administrative hearing "by cherry-picking which facts and theories to raise at his administrative hearing and which to reserve for a civil lawsuit . . . ." (Basurto, supra, 211 Cal.App.4th at p. 888.) This holding has no application to the present case.
We agree with the analysis of the Lee court. Since SDI has not adequately demonstrated that the Southern California Master Labor Agreement or the Southwest Drywall/Lathing Master Agreement apply to Perez, he cannot be presently bound by their arbitration provisions simply because he seeks to represent a putative class of employees who might be subject to them.
IV. The Ruling Does Not Violate AT&T Mobility LLC v. Concepcion
Finally, SDI argues that the trial court's ruling violates the holding in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (Concepcion) because it presents an impermissible obstacle to the accomplishment of the objectives of the Federal Arbitration Act (FAA) (9 U.S.C.S. § 1 et seq.). SDI contends the trial court disfavored and discriminated against arbitration by not explaining any basis for its determination that Perez's asserted rights are statutory and not contractual, failing to consider all of the language in the three CBA's and applying the arbitrability test too strictly.
We find no merit in these positions. The trial court's ruling, as ours, is based on the fundamental and well-settled principle that arbitration is a matter of contract and a party cannot be compelled to arbitrate any dispute which he or she has not agreed to submit. (See AT&T Techs. v. Communs. Workers of Am. (1986) 475 U.S. 643, 648.) The principal purpose of the FAA is to " 'ensur[e] that private arbitration agreements are enforced according to their terms.' [Citations.]" (Concepcion, supra, 563 U.S. at p. 344.) As discussed above, SDI failed to demonstrate an agreement to arbitrate Perez's statutory claims.
Concepcion is not violated by application of the "clear and unmistakable" standard for waiver of statutory rights in CBA's. The doctrinal basis for the rule in Concepcion is federal preemption of state law rules that disfavor or interfere with the fundamental attributes of arbitration. (Concepcion, supra, 563 U.S. at pp. 341-344; Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1156-1157.) The "clear and unmistakable" standard is not a state law rule disfavoring arbitration, but a standard set forth by the U.S. Supreme Court in Wright based on its conclusion that the presumption of arbitrability in a CBA does not apply to statutory violations. (Wright, supra, 525 U.S. at pp. 79-80; see Cortez, supra, 15 Cal.App.5th at p. 12; Vasquez, supra, 80 Cal.App.4th at pp. 434-435 [citing Wright].) The U.S. Supreme Court reaffirmed the Wright standard in 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 258-260 (14 Penn Plaza), and there is no indication that Wright, 14 Penn Plaza, or California cases applying Wright, such as Vasquez, have been overruled or called into doubt by Concepcion. "Post-Concepcion federal and California cases continue to cite Wright, 14 Penn Plaza, and even Vasquez." (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 547 [collecting cases].)
DISPOSITION
The order denying SDI's petition to compel arbitration is affirmed. Perez shall recover his costs on appeal.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Siggins, J.