Trial Court's Ruling That Delay And Prejudice Resulted In Waiver Is Affirmed.
Nunez v. Nevell Group, Inc., G056585 (4/3 5/2/19) (Fybel, Bedsworth, Goethals), addresses an employer's waiver of right to compel arbitration of violations of a wage order under a Collective Bargaining Agreement. The Court affirms the trial court's order denying the employer's motion based on the employer's waiver of its right to compel arbitration.
Most strikingly, "Nevell explicitly waived any right to compel arbitration by advising the trial court in writing that it would not file a motion to compel." Also, the employer missed two-court ordered deadlines to file a motion, and engaged in significant discovery and other litigation activities "inconsistent with the right to arbitration." There was also a finding that the employee was prejudiced by the employer's tactics.
The employer made a legal argument that it would have been futile to seek arbitration before Cortez v. Doty Bros. Equipment Co., 15 Cal.App.5th 1 (2017) was decided. The employer's argument was that the CBA provided for arbitration for violation of wage orders, but the employee's complaint was brought under the Labor Code. The Court of Appeal held that Cortez only clarified and did not change the law: "[T]he Cortez court made clear that the only way to interpret the agreement's language requiring arbitration for wage order claims, when such claims must be brought under the Labor Code, is to conclude that the agreement to arbitrate applies to Labor Code claims."
NOTE: Cortez is the subject of our September 4, 2017 post.
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