Yesterday, the California Court of Appeal for the Second District reversed the lower court’s order granting a petition to compel arbitration in a putative wage & hour class action. Compton v. Superior Court of Los Angeles County, No. B236669, — Cal.Rptr.3d —-, 2013 WL 1120619 (2d Dist. Mar 19, 2013). Plaintiff was a property manager who was required to sign an arbitration agreement that also barred arbitration of class claims. The trial court granted defendants’ petition to compel arbitration.
Normally an order compelling arbitration is not appealable. But the Court of Appeal determined it had jurisdiction, citing the “death knell” doctrine:
An order compelling arbitration is not appealable. (Elijahjuan v. Superior Court (2012) 210 Cal.App.4th 15, 19.) The parties argue over whether this matter is appealable under the “death knell” doctrine, which applies when an order effectively terminates a class action. Rather than parse the case law on that issue, we conclude that we have jurisdiction to treat this nonappealable order as a petition for writ of mandate in this unusual case because: (1) the unconscionability issue is one of law based on undisputed facts and has been fully briefed; (2) the record is sufficient to consider the issue and it appears that the trial court would be only a nominal party; (3) if we were to dismiss the appeal, and the ultimate reversal of the order is inevitable, it would come in a post-arbitration award after the substantial time and expense of arbitrating the dispute; and (4) as a result, dismissing the appeal would require the parties to arbitrate nonarbitrable claims and would be costly and dilatory.
The Court concluded that the arbitration agreement was unconscionably one-sided because (1) it exempted from arbitration claims the employer would more likely bring, such as claims for injunctive or equitable relief from trade secret disclosures; (2) it limited the time to demand arbitration to a period shorter than the relevant statutes of limitation; (3) it retained the statute of limitations period for itself and (4) it suggested that the arbitrator had the discretion not to award mandatory attorney’s fees under the Labor Code.
The Court determined that it was not violating Concepcion by enforcing Armendariz’s bilaterality rule:
Concepcion did not discuss the modicum of bilaterality standard adopted by Armendariz, which is not a class action case. And Concepcion did not overrule Armendariz. We both agree with and are therefore bound to follow our Supreme Court and apply Armendariz to this case. (Truly Nolen of America v. Superior Court, supra, 208 Cal.App.4th at p. 507.) Accordingly, we conclude that Concepcion does not apply to invalidate Armendariz’s modicum of bilaterality rule, at least in this context.
Justices and Judge
Justice Laurence D. Rubin wrote the opinion for the Court, with Justice Madeleine I. Flier concurring. Presiding Justice Tricia A. Bigelow dissented. Judge Michael Johnson, Los Angeles Superior Court.
R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler, Kitty Szeto and John M. Bickford; Lawyers for Justice and Edwin Aiwazian, for Petitioner.
Jackson Lewis, Thomas G. Mackey and Brian D. Fahy for Real Parties in Interest.