Preciado v. SYSCO Food Services

Filed 3/16/07 Preciado v. SYSCO Food Services CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Los Angeles County, Dan K. Oki, Judge. Appeal dismissed. Matter remanded with instructions.

Law Office of Lloyd C. Ownbey, Jr. and Lloyd C. Ownbey, Jr. for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Douglas R. Hart and Jennifer B. Zargarof for Defendants and Respondents.

_______________________________________

In this appeal, plaintiff Jaime Preciado (plaintiff) challenges the trial courts decision to grant a motion by defendant Sysco Food Services of Los Angeles, Inc. to compel arbitration. Because orders granting motions to compel arbitration are not appealable, we have no jurisdiction over this appeal other than to dismiss it as premature.

BACKGROUND OF THE CASE

1. The Complaint, Answer, Removal of the Case to Federal Court
and Remand Back to State Court

This suit was filed on July 23, 2004. Defendant removed the case to federal court and filed its answer to the complaint in September 2004. Thereafter, the district court remanded the case back to state court, and a first amended complaint was filed in January 2005, which defendant answered that same month with a general denial and 31 affirmative defenses.

One of defendants affirmative defenses is that the controversies alleged in plaintiffs first amended complaint (complaint) are subject to a written agreement to arbitrate that is contained in the collective bargaining agreement between plaintiffs union and defendant, and plaintiffs exclusive remedy for the wrongs he asserts is pursuant to the grievance and arbitration provisions in that collective bargaining agreement.

Plaintiff alleged in his complaint that he worked as a forklift operator for defendant for 17 years and 7 months until he was terminated from employment. In January 2001 he was told to take saliva and urine tests for alcohol. He agreed to a urine test and a blood test, but not a saliva test. He believed there was a much greater chance that the saliva test could be tampered with. He was told by defendants agent that the union and defendant had agreed to saliva tests, but the agent was not able or willing to provide plaintiff with a copy of such agreement, and when plaintiff refused to take the saliva test he was terminated for insubordination. Plaintiff had made reports about this agent to defendants upper management, the union and government agencies and the courts.

Plaintiff alleged that after refusing the saliva test, plaintiff immediately went to his doctor at Kaiser and gave a urine sample which showed no presence of alcohol or illegal substances. The demand that he take a saliva test was a pretext for firing him because defendant believed plaintiff is a troublemaker and whistleblower. A saliva test had also been ordered on another occasion, and he circulated a petition to fellow employees objecting to such test. He obtained a large number of signatures but defendant prevented him from completing circulation. The demand for a saliva test was also a violation of his right of privacy under Californias Constitution.

Plaintiff further alleged that defendant has not paid him and his fellow employees all of the money which defendant owes them, and defendant has denied that the money is owed, all in violation of the Labor Code.[1] Moreover, defendant has refused to provide plaintiff with information regarding wages, hours and working conditions concerning this owed money, which is also a violation of the Labor Code. These violations also constitute a violation of an Industrial Welfare Commission order that requires the maintenance and accessibility of relevant compensation information.[2] Plaintiff claims that his termination from employment was a termination in violation of public policy.

2. Defendants First Motion to Compel Arbitration

In March 2005, defendant filed a motion to compel binding arbitration of the matters alleged in plaintiffs complaint, asserting that the collective bargaining agreement (CBA) between defendant and plaintiffs union (Union) requires such arbitration. On April 6, 2005, the trial court granted the motion in part, ruling plaintiffs first cause of action (violation of constitutional privacy rights) and fifth cause of action (termination of employment in violation of public policy) must be arbitrated. The court found that the second, third and fourth causes of action (violation of the Labor Code and the Industrial Welfare Commission order) cannot be arbitrated because the Legislature intended that the Labor Code sections upon which those causes of action rely must not be set aside or negatively impacted by a private agreement.

3. Defendants Second Motion to Compel Arbitration

On January 25, 2006, defendant filed a second motion to have the claims in the second, third and fourth causes of action arbitrated, arguing that the dispute over pay owed to plaintiff, if any be owed, was subject to the CBA, which contains the formula for payment of wages. The specific monies claimed by plaintiff are related to an incentive pay program, and defendant asserted that plaintiffs Labor Code claims (for example, a right to timely payment of the correct wages), rest on an analysis of whether the incentive pay he received was in keeping with the incentive pay plan defined by the CBA, which in turn makes the second through fifth causes of action subject to arbitration. Defendant cited, among other cases, Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 769-769, where the court found that the plaintiffs Labor Code claims for unpaid wages could not be adjudicated without determining the meaning of a CBA and/or side letters.

Defendant also argued that because a court has already decided that plaintiffs claims for unpaid wages are subject to binding arbitration, plaintiff is collaterally estopped from pursuing those claims in this action. Prior to filing this suit, plaintiff sought, in small claims court, payment of the wages he now claims in the instant suit, and the small claims court adjudged that his claims had to be arbitrated.

Plaintiff filed untimely opposition to this second motion to compel arbitration, which the trial court declined to consider. Based on plaintiffs discovery responses, the court ruled plaintiffs claims in the second through fourth causes of action are based on defendants incentive pay plan, which is based on the CBA, and the CBA requires arbitration of those claims. As an alternative ground for granting the motion to compel arbitration, the court ruled that because the small claims courts decision that arbitration is required has become final, plaintiff is collaterally estopped from relitigating the issue.

The court granted the motion to compel arbitration, and dismissed the case without prejudice by signed minute order on February 21, 2006, reserving jurisdiction to set aside the dismissal and enforce the arbitration award at either partys request.

DISCUSSION

Code of Civil Procedure section 581d[3] provides that dismissals ordered by the court are to be in the form of a written order signed by the court, and when they are filed in the action they constitute judgments and are effective for all purposes. Here, as noted above, the trial court signed the minute order by which it granted the motion to compel arbitration, and dismissed the case without prejudice. Nevertheless, we hold there is no appealable order or judgment here.

Section 1294 governs what orders are appealable in matters of judicial determinations regarding contractual arbitration. Orders granting a motion to compel arbitration are not among those orders made appealable by section 1294. Thus, if we were to determine that the signed minute order acts as a judgment entitling plaintiff to appellate review of the order granting defendants second motion to compel arbitration, we would be raising form over substance. A trial court has no authority to transform a decision made nonappealable by the Legislature into an appealable judgment. For that reason, we must find that plaintiff is asking us to determine the validity of an order which we have no jurisdiction to review.[4] The court, in Muao v. Grosvenor Properties, Ltd. (2002) 99 Cal.App.4th 1085, 1088-1089, was presented with the same situation and arrived at the same conclusion. And like the Muao court, we will direct the trial court to vacate the order of dismissal.

Plaintiff may prevail in the arbitration. If he does not prevail there and the arbitrators award is confirmed by the trial court, section 1294 provides that he can appeal from the judgment that is entered in conformity with the confirmation. (Muao v. Grosvenor Properties, Ltd., supra, 99 Cal.App.4th at pp. 1088-1089.)

DISPOSITION

The appeal is dismissed as premature, and the matter is remanded to the trial court with directions to strike, from its February 21, 2006 minute order, the two sentences that read: This case is ordered dismissed without prejudice. The Court will reserve jurisdiction to set aside the dismissal and enforce the arbitration award at the request of either party. Defendant shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J.

ALDRICH, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Plaintiff alleged specific sections of the Labor Code; these sections relate to payment of wages and other compensation.

[2] The complaint does not specify if the Commission is Californias Industrial Welfare Commission (Lab. Code, 70 et seq.).

[3] Unless otherwise indicated, all references herein to statutes are to the Code of Civil Procedure.

[4] A court has jurisdiction to determine whether it has jurisdiction over a matter. (Supple v. City of Los Angeles (1988) 201 Cal.App.3d 1004, 1009, disapproved on other grounds in Jennings v. Marralle (1994) 8 Cal.4th 121, 129, fn. 5.)