Stull v. Gemstar-TV Guide Internat

Filed 3/30/06 Stull v. Gemstar-TV Guide Internat. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Mary Thornton House, Judge. Affirmed.

Law Offices of Robert J. Allan and Robert J. Allan for Plaintiff and Appellant.

Hogan & Hartson, Richard L. Stone and Lee Goldberg for Defendants and Respondents.

* * * * * *

Appellant Victoria Stull (Stull) appeals from the trial court's order denying her motion to compel arbitration. We affirm the order and deny the motion of respondents Gemstar-TV Guide International, Inc. (Gemstar) and Jeffrey Shell (Shell) (collectively, respondents) to dismiss Stull's appeal.[1]

CONTENTIONS

Stull contends that: (1) she had no knowledge of her right to arbitration in March 2003; (2) she had no knowledge of the arbitration provision until April 19, 2005; (3) she did not waive her arbitration right; and (4) public policy compels arbitration of this dispute.

FACTS AND PROCEDURAL BACKGROUND

The employment application

On January 31, 2001, Stull signed an employment application with Gemstar. The one-page employment application contained an arbitration clause, which provided that all disputes arising out of Stull's employment with Gemstar will be submitted to binding arbitration.[2] The arbitration clause stated that it contained the entire and sole agreement between the parties with regard to dispute resolution. Stull initialed each paragraph, including the arbitration clause, and signed and dated the employment application.

On February 14, 2001, Stull accepted Gemstar's written offer of employment for an executive position in Gemstar's corporate finance department. In March 2003, Stull reviewed her personnel file. Gemstar terminated Stull's employment on April 24, 2003. In July 2003, Gemstar produced Stull's personnel file, including her employment application, to the Securities and Exchange Commission (the SEC), which was investigating allegations that Gemstar engaged in fraudulent accounting and reporting practices.

The complaint and discovery

On May 26, 2004, Stull filed a complaint against Gemstar and its chief executive officer, Shell. Stull filed a first amended complaint (FAC) on June 11, 2004, alleging causes of action for: (1) breach of contract; (2) breach of contract and statutory duties; (3) wrongful termination; (4) intentional infliction of emotional distress; and (5) declaratory relief. Stull alleged that she was terminated because she reported to Gemstar that certain employees were shredding documents during the SEC investigation.

On June 25, 2004, Gemstar filed an answer and cross-complaint, alleging causes of action against Stull for: (1) negligent misrepresentation; (2) breach of fiduciary duty; (3) fraudulent inducement of contract; (4) disgorgement of compensation and other profits; (5) unjust enrichment; and (6) negligence and gross negligence.

On August 26, 2004, Stull filed a motion to strike Gemstar's cross-complaint pursuant to Code of Civil Procedure section 425.16.[3] The trial court stayed discovery until it denied the motion on September 20, 2004.

Gemstar took Stull's deposition in January and February 2005. Stull propounded interrogatories, demanded production of documents, and noticed depositions of former Gemstar employees. Gemstar propounded requests for admissions, propounded interrogatories, demanded production of documents, and took depositions. On October 8, 2004, Stull filed a motion to quash a subpoena issued to Stull's current employer.

On April 4, 2005, in response to a request for production of documents, Gemstar produced documents to Stull, including her employment application.

On April 11, 2005, Stull rescheduled the depositions of Shell and Scott Setterberg, a former Gemstar employee. On April 15, 2005, she noticed the deposition of Ann Proctor, a Gemstar employee. Respondents filed motions for summary adjudication against Stull on March 17, 2005 and April 26, 2005. On April 20, 2005, Stull took the deposition of Gemstar's former executive vice-president of administration, Gloria Dickey. On April 22, 2005, Stull demanded that Gemstar provide supplemental responses to Stull's special interrogatories, which Gemstar provided on April 29, 2005.

The motion to compel arbitration

On April 22, 2005, Stull filed a motion to compel arbitration. On April 26, 2005, Stull filed an ex parte application to shorten time for hearing her motion to compel arbitration, which the trial court denied. On April 29, 2005, Stull filed an ex parte application for an order: (1) staying all discovery pending the hearing on the motion to compel arbitration; and (2) continuing the hearing on respondents' motions for summary adjudication. The trial court denied the ex parte application.

In support of her motion to compel arbitration, Stull declared that Lisa Jochums, a former Gemstar employee, informed Stull that Jochums's employment dispute with Gemstar had to be arbitrated pursuant to an arbitration clause contained in her employee application. Stull declared that she did not recall turning in an employment application to Gemstar and that she was advised by Cindy-Sue Lovins,[4] Gemstar's director of human resources during Stull's employment, that Lovins had never seen an arbitration agreement in Stull's files. When presented with Stull's signed and dated employment application, Lovins declared that she had never before seen it. She also stated that Gemstar did not have a policy of arbitrating employment disputes. Stull reviewed her employment file in March 2003 to confirm Lovins's information but did not see an employee application with an arbitration clause.

Gemstar's counsel declared that on April 4, 2005, Gemstar produced Stull's employment application in response to Stull's document request. Stull declared that she received a disk containing the scanned document production on April 18, 2005, and discovered on April 19, 2005 that her employment application contained an arbitration clause. On April 21, 2005, Stull's counsel sent Gemstar a letter demanding arbitration.

In opposition to the motion to compel arbitration, respondents submitted a declaration from Nancy Nugent, Gemstar's vice-president of human resources, who declared that she conducted a random sampling of files of 12 employees hired between 2001 and 2003 and found that each file contained an employee application with an arbitration clause. Nugent declared that Lovins's file contained an employment application with the arbitration clause, and attached it to her declaration. Gemstar's counsel declared that he sent a copy of Stull's employment application to counsel for Dr. Henry Yuen (Gemstar's former chief executive officer), and Elsie Leung (Gemstar's former chief financial officer).

In the meantime, on April 22, 2005, Stull's counsel attempted to obtain a stipulation from Gemstar agreeing that taking the depositions of Setterberg and Shell would not constitute a waiver of Stull's right to arbitration. Gemstar's counsel agreed to permit Stull to depose Shell without using the deposition as evidence that Stull had waived her right to arbitration, but would not so stipulate concerning Setterberg's deposition. Stull's counsel deposed Scott Setterberg on April 22, 2005. On April 28, 2005, Stull filed a motion for summary judgment with respect to Gemstar's cross-complaint. On April 29, 2005, Stull and Gemstar met and conferred on the case. On that same day, Gemstar agreed to extend time for Stull's motion to compel further requests for documents and Stull agreed to extend time for Gemstar's supplemental response to her special interrogatories.

On May 17, 2005, the trial court denied Stull's motion to compel arbitration, finding that Stull had waived her right to arbitration through her delay in pursuing arbitration. The court found that the parties were well into the preparation of the lawsuit before Stull notified respondents of her intent to arbitrate. The trial court further found that Stull knew or should have known that the employment agreement contained an arbitration clause because Gemstar had produced Stull's employment application to the SEC and Stull had inspected her file in March 2003. Furthermore, Stull and the parties engaged in substantial discovery both before and after Stull purportedly discovered the arbitration clause on April 4, 2005. Finally, Gemstar suffered prejudice by the delay because of its substantial disclosure of discovery and information that Stull would not have obtained through the arbitration.

This appeal followed.

DISCUSSION

I. Standard of review

The trial court may deny a petition to compel arbitration if it finds that the moving party has waived its right to arbitration. (Berman v. Health Net (2000) 80 Cal.App.4th 1359, 1363 (Berman).) The determination of waiver is generally a question of fact, and we review the trial court's findings to determine whether they are supported by substantial evidence. (Ibid.) â€