Williams v. BCI Coca-Cola Bottling Co. of L.A.

KEANE WILLIAMS, Plaintiff and Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, Defendant and Respondent.

E072139

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

March 10, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Stevens & McMillan, Daniel P. Stevens, and Heather K. McMillan for Plaintiff and Appellant.

Littler Mendelson and Lena K. Sims for Defendant and Respondent.

I. INTRODUCTION

On December 12, 2013, Keane Williams (plaintiff) was terminated from his employment with BCI Coca-Cola Bottling Company of Los Angeles (defendant). Plaintiff filed a civil complaint in the San Bernardino Superior Court alleging causes of action pursuant to the California Fair Employment and Housing Act (FEHA) (Gov. Code § 12940, et seq.) and for wrongful termination. The matter was eventually submitted to binding arbitration and the arbitrator issued an award granting summary disposition in favor of defendant on the ground that plaintiff's claims were time barred by the applicable statutes of limitations. The trial court denied plaintiff's motion to vacate the arbitrator's award and later confirmed the award, adopting all of the arbitrator's findings and conclusions. Plaintiff appeals from the judgment confirming the award. For the reasons set forth below, we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

On December 12, 2013, plaintiff was terminated from his employment with defendant.

On July 15, 2014, plaintiff filed a complaint against defendant with the Department of Fair Employment & Housing (DFEH) and immediately received a notice of closure and right to sue.

On March 5, 2015, plaintiff filed a civil complaint against defendant in the San Bernardino Superior Court which alleged causes of action pursuant to the FEHA for (1) discrimination; (2) failure to prevent discrimination; (3) a family medical leave violation;and (4) failure to accommodate. Plaintiff also alleged a common law claim for wrongful termination in violation of public policy.

On May 27, 2015, defendant filed a petition to compel arbitration of all the claims alleged in plaintiff's complaint. The motion attached an executed arbitration agreement (Agreement) between plaintiff and defendant. Section 1 of the Agreement states in pertinent part: "This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce." Section 5 of the Agreement further provides: "All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period . . . The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration." Finally, section 8 of the Agreement states: "A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration."

On August 3, 2015, the trial court orally granted defendant's petition; ordered the superior court action stayed pending the outcome of arbitration, and set an August 2, 2016 status conference regarding the completion of arbitration. That same day, the trial court's order was entered into the minutes. The minute order did not direct any party to prepare or submit a separate written order and instead indicated "notice waived."

On January 15, 2016, plaintiff served a formal demand for arbitration. After selection of an arbitrator, defendant filed a motion for summary disposition on the ground that plaintiff's claims were time barred.

On July 26, 2016, the arbitrator granted defendant's motion for summary disposition and issued an award accompanied by a written explanation of her decision. The arbitrator made factual findings confirming that plaintiff was terminated on December 12, 2013; plaintiff filed an administrative complaint with the DFEH on July 15, 2014; plaintiff received a right-to-sue letter the same date; and plaintiff filed a civil complaint in superior court on March 5, 2015. The arbitrator also found that the trial court orally granted defendant's petition to compel arbitration on August 3, 2015 and that plaintiff waived notice of the order, making it final as of that date. Finally, the arbitrator made a factual finding that plaintiff served his demand for arbitration on January 15, 2016. The arbitrator interpreted the language of the Agreement to exclude any tolling provisions afforded by the California Arbitration Act section 1281.12 and, on that basis concluded that plaintiff's demand for arbitration was served untimely.

On August 8, 2016, plaintiff filed a petition to vacate the arbitration award in superior court. The trial court denied the petition on September 8, 2016.

On December 11, 2018, the trial court confirmed the arbitration award and entered a corresponding judgment in defendant's favor.

III. DISCUSSION

A. The California Arbitration Act Governs the Scope of Judicial Review

Initially, we are required to resolve whether judicial review is governed by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) or the California Arbitration Act(CAA). (Code Civ. Proc., § 1280 et seq.)^{1 2} Defendant argues that judicial review in this case is limited under the FAA, specifically section 10(a)(4) and the federal authorities interpreting its provisions, because "the [Agreement] is expressly governed by the FAA (and not the CAA)." Plaintiff disagrees, arguing that both the FAA and CAA authorize courts to vacate an award when "arbitrators exceeded their powers" and, as a result, we may apply California authorities governing judicial review. We conclude that neither party is correct, but that the CAA governs judicial review here.

Federal courts do not consider an arbitrator's erroneous application of the statute of limitations as an act in excess of the arbitrator's powers warranting vacatur. (United States v. Park Place Assocs. (9th Cir. 2009) 563 F.3d 907, 922 [claim that arbitration panel applied the wrong statute of limitations or incorrectly calculated limitations period cannot meet the standard for vacatur]; DeMartini v. Johns (9th Cir. 2017) 693 Fed. Appx. 534, 537 [possible erroneous application of statute of limitations by arbitrator does not meet standard for vacatur].) In contrast, the California Supreme Court has clearly expressed that California courts "need not and do not move in lockstep with the federal courts in matters of judicial review of arbitration awards." (Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 677, fn. 3 (Pearson Dental Supplies, Inc.).) Accordingly, our Supreme Court has held that a clearly erroneous application of thestatute of limitations which deprives a plaintiff of a hearing on the merits of an unwaivable statutory right constitutes an award in excess of the arbitrator's powers under the CAA. (Id. at p. 680.) The holding in Pearson Dental Supplies, Inc. provides a clear example of our Supreme Court adopting a different interpretation of similar statutory language than interpretations adopted by federal courts. Thus, contrary to plaintiff's contention, the fact that both statutes use similar language does not permit us to simply apply California authority on the issue if the FAA applies.

Nevertheless, we are not persuaded by defendant's contention that the scope of judicial review is governed solely by the FAA. We acknowledge that under California law, parties to an arbitration agreement may contractually alter the scope of judicial review. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1356 (Cable Connection, Inc.); Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 25.) This includes the designation of the FAA as the governing standard for judicial review instead of state law. (Countrywide Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 248.) However, "the FAA's procedural provisions do not apply in state court unless the parties expressly adopt them . . . the question is not whether the parties adopted the CAA's procedural provisions: The state's procedural statutes . . . apply by default . . . The question, therefore, is whether the parties expressly incorporated the FAA's procedural provisions into their agreements." (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177.) The FAA's provisions for vacatur are considered part of its procedural and not substantive provisions. (Id. at pp. 173-174 [recognizing 9 U.S.C. §§ 3, 4, 10, 11 as procedural provisions].)

The resolution of this question is governed by California contract law. "[T]he FAA's purpose is not to provide special status for arbitration agreements, but only 'to make arbitration agreements as enforceable as other contracts, but not more so'. . . In accord with this purpose, the [United States Supreme Court] has stated that state contract rules generally govern the construction of arbitration agreements." (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384.) Thus, "even when the [FAA] applies, interpretation of the arbitration agreement is governed by state law principles." (Valencia v. Smyth, supra, 185 Cal.App.4th at p. 177.)

Here, the Agreement provides that "This Agreement is governed by the [FAA]." It contains no other provisions specifying the choice of law governing the manner in which the arbitration proceeding itself is to be conducted or the enforcement of any arbitration award. With respect to enforcement, the agreement provides...