Desert Regional Medical Center, Inc. v. Miller

• Court: California Court of Appeal
• Decided: January 6, 2023
• Docket: E076058
• Status: Published

Opinion

Filed 12/13/22; Certified for Publication 1/6/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DESERT REGIONAL MEDICAL CENTER, INC., E076058 Plaintiff and Appellant, (Super. Ct. No. PSC1905547) v. OPINION LEAH MILLER,

Defendant and Respondent. _____________________________________

DESERT REGIONAL MEDICAL CENTER, INC., E076069

Plaintiff and Appellant, (Super. Ct. No. PSC1905545)

v.

LYNN FONTANA,

Defendant and Respondent. __________________________________

DESERT REGIONAL MEDICAL CENTER, E076205 INC., (Super. Ct. No. PSC1905549) Plaintiff and Appellant,

RENITA ROMERO,

Defendant and Respondent.

1 APPEAL from the Superior Court of Riverside County. Kira L. Klatchko, Judge.

Affirmed.

Hill Farrer & Burrill, Edward S. McLoughlin and Michael S. Turner for Plaintiff

and Appellant.

Department of Industrial Relations Division of Labor Standards Enforcement,

Max Norris and Jessica L. Fry for Defendants and Respondents.

I.

INTRODUCTION

Plaintiff Desert Regional Medical Center, Inc. (DRMC) appeals trial court orders

denying DRMC’s first amended petitions to compel nurses Leah Miller, Lynn Fontana,

and Renita Romero (Respondents) to arbitrate their labor claims alleging rest and meal

break violations by DRMC. DRMC contends the trial court erred by denying its petitions

to compel arbitration and failing to stay Respondents’ individual claims until after

completion of arbitration of a separate proceeding initiated by Respondents’ union (the

California Nurses Association (Union)) on behalf of all nurses employed by DRMC in

California. DRMC argues the trial court erred in denying DRMC’s petitions to compel

arbitration based on a finding DRMC waived the right to arbitrate. DRMC asserts that

the issue of waiver must be determined by the arbitrator, not the trial court, and, even if

the court has jurisdiction to decide waiver, there was insufficient evidence to support its

finding of waiver. DRMC further contends Respondents are estopped from arguing

waiver because Respondents’ Union was responsible for DRMC’s delay in petitioning to

2 compel arbitration and agreed, in a separate proceeding, to arbitrate the Union’s group

grievance.

We reject DRMC’s contentions and affirm the order denying DRMC’s amended

petitions to compel arbitration and request for a stay.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. Respondents are registered nurses (RNs)

employed by DRMC. DRMC is a California corporation, which owns and operates

Desert Regional Medical Center, California, an acute care hospital owned and operated

by a subsidiary corporation of Tenet Healthcare Corporation (Tenet). DRMC provides

healthcare services and is engaged in interstate commerce within the meaning of the

Federal Arbitration ACT (FAA).

At all times relevant to this proceeding, Respondents have been employed

pursuant to a collective bargaining agreement (CBA) negotiated between DRMC and the

Union. Article 11 of the CBA includes provisions governing RN rest breaks, meal

periods, and payment of missed break premiums. Article 9 of the CBA sets forth

mandatory grievance and arbitration procedures which must be followed when processing

disputes involving interpretation or application of the CBA. Article 9E of the CBA states

that individual RNs and DRMC may voluntarily agree to arbitrate “any dispute not

otherwise arbitrable under the [CBA]” under the Tenet Fair Treatment Process (FTP),

which provides dispute resolution procedures for employment related disputes.

3 Respondents signed a DRMC employment document, entitled

“Acknowledgement,” referred to herein as an Employment Arbitration Agreement.

Under the agreement, Respondents agreed to submit non-CBA covered claims or disputes

to final and binding arbitration before the American Arbitration Association (AAA).

The following summary of facts and procedural background show the

chronological overlapping of the Union group grievance proceedings brought by the

Union under the CBA on behalf of all of DRMC’s RNs, and Respondents’ individual

claims decided by the state Labor Commissioner. DRMC appealed the Labor

Commissioner’s order in state court and then petitioned to compel arbitration of

Respondents’ individual claims. This appeal concerns the trial court denying DRMC’s

amended Petition to compel arbitration of Respondents’ individual claims.

A. Union Group Grievance

In March 2015, the Union filed with DRMC, on behalf of DRMC’s RNs, a meal

and rest break grievance.

The Union group grievance alleges that DRMC was committing ongoing

violations of the CBA and California state law by (1) altering employee timesheets

without their consent; (2) refusing to provide employees with their time sheets when

requested; (3) refusing to comply with the Union’s request for time sheets from all

employees; (4) not paying employees for missed meals in accordance with Wage Order

requirements; and (5) not paying employees for their missed breaks in accordance with

Wage Order requirements. The Union group grievance requested DRMC to immediately

4 supply the Union with RN timesheets going back three years; to immediately cease and

desist the practice of altering timesheets; and to pay employees for all missed meals and

breaks.

In May 2015, the Union sent DRMC a letter requesting arbitration of the

unresolved meal and rest period grievance under the CBA.

B. Respondents’ Individual Claims

In July 2015 or 2016, Respondents and three other DRMC RNs each filed their

own claims with the Labor Commissioner, alleging violations of Labor Code sections

203, 226.7, and 517, and Wage Order 5. The claimants requested payment of (1) unpaid

rest period premium wages; (2) unpaid meal period premium wages; and (3) waiting time 1 penalties under Labor Code section 203.

1 It is unclear from the record whether Respondents’ claims were filed in 2015 or 2016. The clerk’s transcript does not include the original claims. DRMC’s amended Petition states Respondents’ claims were filed in July 2015. The Labor Commissioner’s July 19, 2019 decision also states that Respondents’ claims were filed with the Labor Commissioner in 2015. Respondents’ formal administrative complaints, filed with the Labor Commissioner in October 2018, state their claims were initially filed in July 2015. However, Respondents’ opposition to the amended Petition and the federal district court order, remanding the matter back to the state court, state Respondents’ claims were filed in July 2016.

5 C. Union Group Grievance

The Union’s grievance filed on behalf of all of DRMC’s RNs (group grievance),

was not informally resolved. Therefore, the Union referred the group grievance to

arbitration under the CBA. In June 2018, the Union sent DRMC a letter noting that the

unpaid meal and break group grievance remained outstanding.

D. Respondents’ Individual Claims Before the Labor Commissioner

In February 2019, DRMC filed with the Labor Commissioner a brief entitled

“Defendant’s Jurisdictional Objections,” arguing that the Labor Commissioner lacked

jurisdiction to hear and decide Respondents’ individual claims because they had to be

resolved in another forum. DRMC asserted that the CBA required compliance with

grievance procedures and arbitration, and Respondents’ Employment Arbitration

Agreements also required arbitration of Respondents’ individual claims. DRMC argued

that, at a minimum, the Labor Commissioner was required to defer hearing Respondents’

claims until after Respondents’ individual claims were arbitrated.

In February and March 2019, the Labor Commissioner heard under Labor Code 2 section 98, Respondents’ individual claims. During the hearing, which lasted several

2 As the court explained in Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 (Sonic I ), such a hearing is commonly referred to as a Berman hearing, in which “‘the employee may seek administrative relief by filing a wage claim with the commissioner pursuant to a special statutory scheme codified in sections 98 to 98.8. [This] option was added by legislation enacted in 1976 (Stats. 1976, ch. 1190, §§ 4-11, pp. 5368-5371) and is commonly known as the “Berman” hearing procedure after the name of its sponsor.’ [Citation.]” (Sonic I, supra, at pp. 671-672; see also Sonic- Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1127-1128 (Sonic II).)

6 days, the hearing officer heard testimony and the parties presented documentary evidence

and arguments.

On July 19, 2019, the Labor Commissioner issued an administrative order,

decision, or award of the labor commissioner (Order), which provided a detailed analysis

of the Labor Commissioner’s findings, analysis, and calculations. The Order stated that

DRMC owed Respondents unpaid wages and interest, and ordered DRMC to pay Miller

$64,120.64; Romero $58,835.87; and Fontana $51,156.97 for unpaid wages and interest.

E. Respondents’ Individual Claims in Trial Court

On August 7, 2019, DRMC filed in the Riverside County Superior Court a notice

of filing a de novo appeal of the Labor Commissioner’s order awarding Respondents

unpaid wages. DRMC stated in the notice that it was appealing the Order on the grounds

the CBA and Wage Order required resolution of Respondents’ individual claims through

CBA’s grievance and arbitration process. Instead of complying with those grievance and

arbitration requirements, Respondents submitted individual wage claims to the Labor

Commissioner. DRMC’s notice of appeal of the Order further asserted that under federal

arbitration law, the CBA grievance and arbitration procedures take precedent and must be

exhausted before any other action is taken. DRMC argued that, therefore, the Labor

Commissioner lacked jurisdiction over the Respondents’ individual claims.

7 On August 26, 2019, DRMC filed notices of removal of DRMC’s action appealing

the Labor Commissioner’s Order, to the federal district court on the ground the federal

court had federal question jurisdiction under the federal Labor Management Relations

Act (29 U.S.C. § 185).

On September 23, 2019, Respondents filed a motions to remand DRMC’s case

appealing the Order back to the state court.

F. Union Group Grievance

In October 2019, the Union sent DRMC a letter requesting a meeting to discuss

the unresolved Union group grievance and a referral to arbitration.

G. Respondents’ Individual Claims

On December 4, 2019, the federal district court granted Respondents’ motion to

remand back to the state court DRMC’s action appealing the Labor Commissioner’s

Order. The federal court granted remand on the ground that “‘[t]he right to remove a

state court case to federal court is clearly limited to defendants.”’ (Am. Int’l

Underwriters (Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260 (9th Cir.

1988 (citing 28 U.S.C. § 1441).) The federal court explained that DRMC was not a

defendant and therefore “forfeited its right to a federal forum when it initially filed this

action in state court.”

8 At trial setting conferences in January and February 2020, the court set the trial

date for DRMC’s action appealing the Labor Commissioner’s order. The trial date was

later vacated and converted to a trial setting conference because of Covid General Order

2020-15, dated April 22, 2020, regarding civil division emergency reorganization.

Upon remand, DRMC filed notices of related cases and requested transfer of

DRMC’s action appealing the Order, to a different courtroom or courthouse. On March

16, 2020, the trial court denied DRMC’s request on the ground DRMC brought its

motions in the wrong courtroom.

H. DRMC’s Petition to Compel Arbitration of Respondents’ Individual Claims

On July 23 and 24, 2020, DRMC filed petitions to compel arbitration of 3 Respondents’ individual claims and stay the trial court action (Petitions). DRMC

alleged in the Petitions that under the FAA, DRMC is entitled to arbitrate Respondents’

individual claims in accordance with the terms of the applicable agreements to arbitrate.

DRMC requested an order staying the judicial action until arbitration was completed.

The Petitions initially were scheduled to be heard on August 27, 2020, but were

continued to September 15, 2020, “Due to Courts Unavailability.”

3 The material allegations are essentially the same in each of DRMC’s Petitions and amended Petitions.

9 On July 30, 2020, DRMC filed a motion to deem DRMC’s cases appealing the

Order related and reassigned.

I. The Union Group Grievance

The Tenet Health labor relations manager confirmed by letter dated August 12,

2020, sent to the Union and arbitrator Michael Prihar, that the Union and Tenet, on behalf

of DRMC, had agreed to arbitrate the Union group grievance regarding “Missed Meals-

Time Sheets,” and appoint Michael Prihar as arbitrator. Efforts to schedule the 4 arbitration hearing were underway.

J. Respondents’ Individual Claims

Before the trial court ruled on DRMC’s Petitions, DRMC filed on September 4, 8,

and 10, 2020, first amended Petitions to compel arbitration and stay action, and notices of

hearing. Hearings on the amended Petitions were set for September 29 and 30, 2020, and

October 16, 2020. DRMC added in the amended Petitions allegations regarding the CBA

provisions requiring nurses to notify their supervisors in advance of inability to take

4 According to DRMC’s appellant’s reply brief (pp. 11-13) and motion to take additional evidence (Exh. A, pp. 34-35), filed in this court on January 7, 2022, arbitration of the Union group grievance was held on August 23 and October 8, 2021, after DRMC filed its notices of appeal in this action in November 2020. DRMC’s motion for this court to take additional evidence is denied on the ground the additional evidenced is irrelevant or already in the record on appeal. It consists of (1) the reporter’s transcripts of the arbitration hearing on August 23 and October 8, 2021, and (2) exhibits entered into evidence during the arbitration. The proposed evidence was either not before the trial court when the court denied DRMC’s Amended Petitions to compel arbitration in October and November, 2020, or is already part of the record on appeal. In addition, the requested additional evidence is from a different matter and different forum than the instant case.

10 breaks and provide a written explanation as to why a meal break was missed. DRMC

also added allegations that the Union and DRMC had agreed to arbitrate the Union group

grievance and selected an arbitrator. In addition, DRMC alleged it did not commit

conduct constituting waiver of its right to arbitrate and Respondents were estopped from

arguing DRMC waived its right to arbitrate by the Union agreeing to arbitrate the Union

group grievance. DRMC also added allegations summarizing the FTP grievance

resolution procedures and attached a copy of the FTP. Respondents filed opposition to

the amended Petitions and DRMC filed a reply.

On September 29, 30, and November 6, 2020, the trial court heard and took the

matter under submission.

On November 4, 2020, DRMC filed a notice of appeal of the October 26, 2020

order denying its amended Petition as to Miller and Fontana.

On November 6, 2020, the court denied DRMC’s amended Petition against

Romero.

On December 2, 2020, DRMC filed a notice of appeal of the November 6, 2020

order denying its amended Petition as to Romero.

III.

STANDARD OF REVIEW AND BURDEN OF PROOF

Both parties assert, and we agree, that this court should review de novo the issues

raised in DRMC’s appeal because the facts are undisputed and the issue of waiver of the

right to compel arbitration turns on questions of law.

11 The determination of waiver, the key issue in this appeal, is generally a question of

fact, and “the trial court’s finding, if supported by sufficient evidence, is binding on the

appellate court.” (St. Agnes Medical Center v. PacificCare of California (2003) 31

Cal.4th 1187, 1196 (St. Agnes).) “When, however, the facts are undisputed and only one

inference may reasonably be drawn, the issue is one of law and the reviewing court is not

bound by the trial court’s ruling.” (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307,

319; St. Agnes, supra, at p. 1196.)

Under the FAA, “a party who resists arbitration on the ground of waiver bears a

heavy burden [citations], and any doubts regarding a waiver allegation should be resolved

in favor of arbitration [citations].” (St. Agnes, supra, 31 Cal.4th at p. 1195.) Our state

waiver rules are in accord. (Ibid.) “Although a court may deny a petition to compel

arbitration on the ground of waiver (§ 1281.2, subd. (a)), waivers are not to be lightly

inferred and the party seeking to establish a waiver bears a heavy burden of proof.

[Citations.]” (St. Agnes, supra, at p. 1195.)

IV.

DISCUSSION

DRMC contends the trial court erred in entering its orders on October 26, 2020,

and November 6, 2020, denying DRMC’s Petition to compel arbitration. We disagree.

DRMC argues that under the CBA, Employment Arbitration Agreement, and FTP,

Respondents were required to arbitrate their individual claims against DRMC.

12 A. Law Applicable to Compelling Arbitration

The FAA makes enforceable a written arbitration provision in a contract

evidencing a transaction affecting interstate commerce. (Circuit City v. Adams (2001)

532 U.S. 105, 111-124; 9 U.S.C. § 2.) It is undisputed that DRMC is involved in

interstate commerce. (Circuit City v. Adams, supra, at pp. 111-124.) The FAA also

makes enforceable an obligation included in an employment collective bargaining

agreement to arbitrate state statutory claims. (14 Penn Plaza LLC v. Pyett (2009) 556

U.S. 247, 252, 256-258.) The FAA authorizes any party aggrieved by the failure or

refusal of another to arbitrate under an enforceable arbitration agreement to petition the

court for an order to compel arbitration in accordance with the terms of the arbitration

agreement. (9 U.S.C. § 4.)

Section 1281.2 of the California Arbitration Act requires the trial court to grant a

petition to compel arbitration unless it finds (1) no written agreement to arbitrate exists,

(2) the right to compel arbitration has been waived, (3) grounds exist for rescission of the

agreement, or (4) litigation is pending that may render the arbitration unnecessary or

create conflicting rulings on common issues.

However, “[a]s a general rule, state statutory wage and hour claims are not subject

to arbitration, whether the arbitration clause is contained in the CBA or an individual

agreement. The CBA cannot waive the right to sue under applicable federal or state

statutes because these statutory rights ‘devolve on petitioners as individual workers, not

13 as members of a collective organization.’” (Hoover v. American Income Life Ins. Co.

(2012) 206 Cal.App.4th 1193, 1206 (Hoover).)

B. Written Agreements to Arbitrate

DRMC argues that under the CBA, Respondents were required to arbitrate their

individual claims, and any claims not subject to CBA arbitration must be arbitrated under

Respondents’ Employment Arbitration Agreement and FTP.

1. CBA Arbitration Terms

The CBA between DRMC and the Union representing DRMC’s RNs, including

Respondents, contains provisions governing DRMC’s RNs’ hours of work, overtime,

scheduling, wages, premiums, and other compensation. The CBA provisions guarantee

that DRMC will comply with applicable California and federal wage and hour

requirements, and with Industrial Welfare Commission Wage Order requirements

regarding meal and rest periods.

Article 9 of the CBA provides mandatory grievance and arbitration procedures for

addressing grievances. A grievance is defined in the CBA as “a dispute as to the

interpretation, meaning or application of a specific provision of this [CBA] Agreement.”

The CBA grievance process requires RNs and the Union initially to attempt to resolve

informally RN disputes directly with DRMC. If unsuccessful, the Union may submit to

arbitration any unresolved grievance. Under Article 9C, 2 of the CBA, “The arbitrator’s

decision shall be rendered in writing and shall be final and binding on the parties and on

all affected bargaining unit Registered Nurses.”

14 The CBA states in Article 9E that individual RNs and DRMC may voluntarily

agree to arbitrate “any dispute not otherwise arbitrable under the [CBA],” under the FTP.

Respondents voluntarily agreed to arbitrate employment-related disputes by signing an

Employment Arbitration Agreement, agreeing to submit any and all non-CBA covered

claims or disputes with DRMC to final and binding arbitration in accordance with the

2. DRMC Employment Arbitration Agreement

The Employment Arbitration Agreement states that, “[e]xcept to the extent that

any applicable [CBA] provided otherwise, I hereby voluntarily agree to use [DRMC’s]

Fair Treatment Process and to submit to final and binding arbitration any and all claims

and disputes that are related in any way to my employment or the termination of my

employment with Tenet. I understand that final and binding arbitration will be the sole

and exclusive remedy for any such claim or dispute against Tenet or its . . . affiliated

companies and entities, . . . I also agree that such arbitration will be conducted . . . under

the Federal Arbitration Act and the procedural rules of the American Arbitration

Association (‘AAA’).”

3. The FTP

The FTP agreement states that “Tenet has established the Fair Treatment Process

(‘FTP’), to provide for review of employment-related disputes between [DRMC] and its

employees, culminating in final and binding arbitration of such disputes if they cannot be

resolved through the optional internal step.” As to applicability and coverage, the FTP

agreement to arbitrate “covers all disputes relating to or arising out of an employee’s

15 employment with [DRMC] or the termination of employment. The only disputes or

claims not covered by the FTP are those listed in the Exclusions section below. . . . This

is a mutual agreement to arbitrate claims which means that both the employee and

[DRMC] are bound to use the FTP process as the only means of resolving employment-

related disputes, and thereby agree to forego any right they each may have had to a jury

trial on issues covered by the FTP.” (Italics added.)

The first step of the three-step FTP process is optional and consists of submitting a

written claim on a “Dispute Resolution Form” to DRMC’s Human Resources department.

If the employee is dissatisfied with DRMC’s response to the claim, then the dispute must

be submitted to final and binding arbitration. The required FTP arbitration process is

stated in detail. The FTP explicitly states that “[c]ertain issues may not be submitted for

review (or exclusive review) under the FTP. . . . [A]ny non-waivable statutory claims,

which may include claims within the jurisdiction of the National Labor Relations Board,

wage claims within the jurisdiction of a local or state labor commissioner . . . are not

subject to exclusive review under the FTP. This means that employees may file such non-

waivable statutory claims with the appropriate agency that has jurisdiction over them if

they wish, regardless of whether they decide to use the FTP to resolve them. However, if

such agency completes its processing of an employee’s claim and the employee decides to

pursue further remedies on such claims in a civil action against [DRMC], the employee

must use the FTP (although Step 1 may be skipped). In addition, the FTP does not apply

16 to employees covered by a collective bargaining agreement, unless otherwise agreed to

by such employees.” (Italics added.)

The parties dispute whether Respondents’ individual claims must be arbitrated

under the CBA. Even if not subject to mandatory arbitration under the CBA, any claims

not covered by the CBA are subject to the Employment Arbitration Agreement and FTP.

However, the FTP expressly states that “wage claims within the jurisdiction of a local or

state labor commissioner . . . are not subject to exclusive review under the FTP.”

Respondents therefore could “file such non-waivable statutory claims with the

appropriate agency.” Respondents did so.

DRMC argues that after the Labor Commissioner resolved Respondents’ individual

claims and DRMC appealed the decision in the superior court, DRMC had a right to

arbitrate the matter. While the instant appeal was pending, the United States Supreme

Court in Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906, 1924, (Viking),

considered whether the employer, Viking River Cruises, Inc. (Viking), had a right to

compel arbitration of an employee’s “individual” claim under the Labor Code Private

Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). In addressing the

issue, the court in Viking held that the FAA preempts California law stated in Iskanian v.

CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, which prohibits splitting

PAGA claims into arbitrable “individual” claims, which are based on a labor violation

17 5 personally experienced by an employee plaintiff, and nonarbitrable “representative”

claims, which are brought by the plaintiff employee on behalf of California’s Labor and

Workforce Development Agency (LWDA) and other employees who also experienced

labor violations. (Viking, supra, at p. 1924.) The Court in Viking also concluded that the

FAA, however, does not preempt the additional Iskanian rule prohibiting wholesale

waivers of the right to assert representative claims under PAGA. (Viking, supra, at pp.

1924-1925.)

The Supreme Court explained in Viking that the FAA only “preempts the rule of

Iskanian insofar as it precludes division of PAGA actions into individual and non-

individual claims through an agreement to arbitrate.” (Viking, supra, 142 S. Ct. at p.

1924.) The arbitration agreement between Viking and the plaintiff employee purported

to waive “representative” PAGA claims. Under Iskanian, this provision was invalid as a

wholesale waiver of PAGA claims. That aspect of Iskanian was not preempted by the

FAA. (Viking, supra, at pp. 1924-1925.) The court in Viking thus concluded that Viking

had a right to arbitrate the employee’s individual claim, but did not have a right to

arbitrate the representative PAGA claim. (Ibid.)

In Sonic I, the California Supreme Court held that “it is contrary to public policy

and unconscionable for an employer to require an employee, as a condition of

employment, to waive the right to a Berman hearing, a dispute resolution forum

5 In the context of this discussion of Viking, use of the term, “individual” claim refers only to the plaintiff employee’s personal claim and does not encompass the “representative” claims also included in the PAGA claim.

18 established by the Legislature to assist employees in recovering wages owed.” (Sonic II,

supra, 57 Cal.4th at p. 1124.) The court in Sonic I further held that its rule prohibiting

waiver of a Berman hearing is not preempted by the FAA. (Sonic II, supra, at p. 1124.)

Upon granting certiorari, the United States Supreme Court in Sonic-Calabasas A,

Inc. v. Moreno (2011) 565 U.S. 973, ordered the Sonic I judgment vacated and the case

remanded to the Supreme Court of California for further consideration in light of AT & T

Mobility LLC v. Concepcion (2011) 563 U.S. 333. In Concepcion, the United States

Supreme Court held that the FAA preempts California’s judicial rule regarding the

unconscionability of class arbitration waivers in consumer contracts. (Conception, supra,

at p. 352.)

In Sonic II, the California Supreme Court held that waiver of a Berman hearing in

an arbitration agreement, imposed on an employee as a condition of employment, is no

longer prohibited. (Sonic II, supra, 57 Cal.4th at p. 1124 [“we now hold, contrary to

[Sonic I, supra, 51 Cal.4th at pp. 671-72], that the FAA preempts our state-law rule

categorically prohibiting waiver of a Berman hearing in a predispute arbitration

agreement imposed on an employee as a condition of employment.”].)

Although waiver of a Berman hearing may be permissible under Sonic II as a

result of FAA preemption, in the instant case, the Employment Arbitration Agreement

and FTP do not require the employee to waive a Berman hearing and do not require

mandatory arbitration afterwards if requested by the employer. The FTP only requires

19 the employee to arbitrate under the FTP after a Berman hearing if the employee decides

to pursue further remedies in a civil action against the employer.

Furthermore, regardless of whether Desert Regional had a right to arbitrate

respondents’ individual claims, Desert Regional waived any such right, as discussed

below.

C. Waiver of the Right to Compel Arbitration

There is no dispute that Respondents and DRMC, and their authorized agents,

signed the CBA and agreed to the terms of the Employment Arbitration Agreement and

incorporated FTP. There is also no dispute that DRMC and Respondents agreed to these

agreements’ arbitration provisions. The principal question here is whether DRMC

waived its contractual right, if any, to arbitrate Respondents’ individual claims. We

conclude that, even assuming DRMC met its burden of establishing there was an

applicable written contract requiring arbitration of Respondents’ individual claims,

DRMC waived any such right by delaying filing the Petition to compel arbitration until

July 23 and 24, 2020.

1. Court Jurisdiction to Determine Issue of Waiver

DRMC argues that under Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S.

79 (Howsam), Moses H. Cone Memorial Hospital v. Mercury Constr. Corp (1983) 460

U.S. 1 (Moses), and Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955 (Omar),

the issue of waiver of the right to compel arbitration should have been decided by the

arbitrator, not the court. We disagree.

20 DRMC asserts that under federal law, waiver is presumptively for the arbitrator to

decide and federal law applies. (See Howsam, supra, 537 U.S. at pp. 83-85; Moses,

supra, 460 U.S. at pp. 24-25; Omar, supra, 118 Cal.App.4th at p. 964.) Although the

United States Supreme Court has “long recognized and enforced a ‘liberal federal policy

favoring arbitration agreements’ [citation], it has made clear that there is an exception to

this policy: The question whether the parties have submitted a particular dispute to

arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination

[u]nless the parties clearly and unmistakably provide otherwise.’ [Citations.]” (Howsam,

supra, at p. 83.) “Thus, a gateway dispute about whether the parties are bound by a given

arbitration clause raises a ‘question of arbitrability’ for a court to decide.” (Id. at p. 84.)

“At the same time the Court has found the phrase ‘question of arbitrability’ not

applicable in other kinds of general circumstance where parties would likely expect that

an arbitrator would decide the gateway matter.” (Howsam, supra, 537 U.S. at p. 84.) For

instance, in federal court “the presumption is that the arbitrator should decide

‘allegations of waiver, delay, or a like defense to arbitrability.’” (Ibid., italics added; see

also Moses, supra, 460 U.S. at pp. 24-25.) Thus, in federal court, in the absence of an

agreement to the contrary, “‘issues of procedural arbitrability, i.e., whether prerequisites

such as time limits, notice, laches, estoppel, and other conditions precedent to an

obligation to arbitrate have been met, are for the arbitrators to decide.’” (Howsam,

supra, at p. 85, italics added.)

21 The court in Omar, supra, 118 Cal.App.4th 955, 965, held that under federal law

the issue of waiver of arbitration is for the arbitrator to decide. However, the court in

Omar explained that “whether waiver claims are determined by the court or the arbitrator

depends on whether the arbitration agreement is governed by federal or state law. The

authors state that under California law the court determines waiver, while under federal

law the arbitrator must decide whether the delay in demanding arbitration was

unreasonable and prejudicial and, where the delay is unrelated to the litigation process,

‘it is improper for the judge to decide this issue.’” (Id. at p. 963, italics added; see also

Code of Civ. Proc., § 1281.2.)

Omar concluded that because all of the waiver allegations concerned Nonlitigation

conduct, such as a failure to agree to pay the costs of arbitration, the issues involved

“contract interpretation and arbitration procedures, which are more properly subjects of

determination by an arbitrator than the court.” (Omar, supra, 118 Cal.App.4th at p. 964.)

Unlike in Omar, Respondents’ allegations in the present case raise the issue of waiver in

context of DRMC’s litigation conduct. Omar thus does not apply here, and it was proper

for the trial court to decide the issue of waiver.

“Because arbitration is an alternative to litigation, a party who actively participates

in a lawsuit and thereby resorts to the courts to resolve the dispute may be found, through

such inconsistent behavior, to have relinquished its right to arbitrate. [Citing federal

authorities.] [¶] Because such a waiver is based upon conduct related to the judicial

22 process, the existence of waiver is a question for the courts to decide.” (Thorup v. Dean

Witter Reynolds, Inc. (1986) 180 Cal.App.3d 228, 234.)

In addition, although in the instant case, the CBA, Employment Arbitration

Agreement, and FTP provide that arbitrations shall be governed by the Federal

Arbitration Act (FAA) and American Arbitration Association (AAA) procedural rules,

California law nevertheless applies to the determination of whether the court or arbitrator

has jurisdiction over the issue of waiver. This is because Respondents’ individual claims

allege state statutory labor code violations and are not brought by the Union under the

CBA. In addition, DRMC is seeking to enforce an employment contract arbitration

provision which is subject to state law and which does not expressly provide that federal

law shall apply to the determination of waiver or that the arbitrator shall decide the issue.

(Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 686-687 “[[T]he text of

[FAA] § 2 declares that state law may be applied “if that law arose to govern issues

concerning the validity, revocability, and enforceability of contracts generally.””].)

In California, section 1281.2 provides in relevant part: “On petition of a party to

an arbitration agreement alleging the existence of a written agreement to arbitrate a

controversy and that a party to the agreement refuses to arbitrate that controversy, the

court shall order the petitioner and the respondent to arbitrate the controversy if it

determines that an agreement to arbitrate the controversy exists, unless it determines that:

[¶] (a) The right to compel arbitration has been waived by the petitioner.” (Italics

23 added.) The trial court therefore had jurisdiction under state law to determine whether

DRMC waived its right to arbitrate Respondents’ individual claims.

Thus, regardless of whether state or federal law applies in determining whether

waiver is an issue for the court or arbitrator, the result is the same in this case: The trial

court had jurisdiction to decide the issue of waiver.

2. Waiver Findings

The term “waiver” has a number of meanings under statutory and case law. (St.

Agnes, supra, 31 Cal.4th at p. 1195, fn. 4.) “While ‘waiver’ generally denotes the

voluntary relinquishment of a known right, it can also refer to the loss of a right as a

result of a party’s failure to perform an act it is required to perform, regardless of the

party’s intent to relinquish the right. [Citations.] In the arbitration context, ‘[t]he term

“waiver” has also been used as a shorthand statement for the conclusion that a contractual

right to arbitration has been lost.’ [Citation.]” (Ibid.) Under federal law, the federal

principle of “default” is analogous to waiver. (Id. at p. 1195.)

There is no single test under state or federal law that delineates the nature of the

conduct that will constitute a waiver of arbitration. (St. Agnes, supra, 31 Cal.4th at p.

1196.) “‘“In the past, California courts have found a waiver of the right to demand

arbitration in a variety of contexts, ranging from situations in which the party seeking to

compel arbitration has previously taken steps inconsistent with an intent to invoke

arbitration [citations] to instances in which the petitioning party has unreasonably

delayed in undertaking the procedure. [Citations.]”’” (Ibid.)

24 In assessing waiver of a contractual right to arbitration, the court may consider the

following factors when determining waiver: “‘“(1) whether the party’s actions are

inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been

substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the

party notified the opposing party of an intent to arbitrate; (3) whether a party either

requested arbitration enforcement close to the trial date or delayed for a long period

before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim

without asking for a stay of the proceedings; (5) ‘whether important intervening steps

[e.g., taking advantage of judicial discovery procedures not available in arbitration] had

taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing

party.”’” (St. Agnes, supra, 31 Cal.4th at p. 1196, quoting Sobremonte v. Superior Court

(1998) 61 Cal.App.4th 980, ; Wagner Construction Co. v. Pacific Mechanical Corp.

(2007) 41 Cal.4th 19, 31.)

California courts thus have found a waiver of the right to arbitration in a variety of

contexts, “‘“ranging from situations in which the party seeking to compel arbitration has

previously taken steps inconsistent with an intent to invoke arbitration [citations] to

instances in which the petitioning party has unreasonably delayed in undertaking the

procedure.”’” (Fleming Distribution Co. v. Younan (2020) 49 Cal.App.5th 73, 80

(Fleming).) “[A] party that wishes to pursue arbitration must take ‘“active and decided

steps to secure that right”’ because an arbitration agreement ‘“is not . . . self-executing.”’

[Citation.] ‘Mere announcement of the right to compel arbitration is not enough. To

25 properly invoke the right to arbitrate, a party must (1) timely raise the defense and take

affirmative steps to implement the process, and (2) participate in conduct consistent with

the intent to arbitrate the dispute. Both of these actions must be taken to secure for the

participants the benefits of arbitration.’” (Id. at pp. 80-81.)

As noted in Fleming, supra, 49 Cal.App.5th at page 80, “Although participating in

the litigation of an arbitrable claim does not by itself waive a party’s right to later seek to

arbitrate the matter, at some point continued litigation of the dispute justifies a finding of

waiver. (Hoover, supra, 206 Cal.App.4th at p. 1204 [courts look at the party’s actions, as

a whole, in determining whether its conduct is inconsistent with an intent to arbitrate];

see also e.g., Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 446

[four months passed after the filing of an action before the party ‘expressed a desire to

arbitrate’]; []Platt Pacific, Inc. v. Andelson[, supra,] 6 Cal.4th [at p.] 314 [party may

waive the right without the intent to do so by, for example, making an untimely demand

to arbitrate]; Zamora v. Lehman [2010] 186 Cal.App.4th [1,] 12, 18.)”

Here, DRMC did not timely raise its right to arbitrate Respondents’ individual

claims or take affirmative steps to implement the process. DRMC delayed filing its

Petition to compel arbitration for over four years, which included at least three years from

when Respondents submitted their individual claims against DRMC with the Labor

Commissioner, until the Labor Commissioner decided the claims in July 2019. DRMC

then delayed an additional year until DRMC finally filed in July 2020, a Petition to

compel arbitration of Respondents’ individual claims. During the three-year period after

26 Respondents filed their individual claims with the Labor Commissioner, DRMC failed to

expeditiously file a Petition to compel arbitration and request a stay. Instead, DRMC

actively participated in the Labor Commissioner proceedings. DRMC filed objections to

the Labor Commissioner’s jurisdiction over the claims, argued that Respondents’

individual claims had to be arbitrated under the CBA and Employment Arbitration

Agreement, and participated in a five-day Labor Commissioner hearing (Berman hearing)

in February and March 2019, during which DRMC and Respondents presented

documentary evidence and arguments.

Even if, as DRMC argues, the court can only consider DRMC’s one-year delay

after the Labor Commissioner issued its decision in July 2019, such delay supports a

finding of waiver. DRMC’s actions during that one-year period, from July 2019 until

July 2020, were inconsistent with an intent to arbitrate. Rather than filing a Petition to

compel arbitration right after receiving the unfavorable Labor Commissioner’s decision,

on August 7, 2020, DRMC proceeded to contest the award by filing in the trial court a de

novo appeal of the Labor Commissioner’s decision. We recognize that such act alone

was not sufficient to waive arbitration. (Hoover, supra, 206 Cal.App.4th at p. 1204.)

However, DRMC took additional actions which supported the trial court’s finding that

DRMC’s actions, as a whole, were inconsistent with an intent to arbitrate. In August

2019, DRMC attempted to remove to federal court its state court action appealing the

Labor Commissioner’s decision without success; filed motions of related cases and

requested reassignment and transfer of DRMC’s case appealing the Labor Commissioner

27 decision to a different courtroom or courthouse, which the trial court denied in March

2020; objected in May 2020, to Respondents’ written discovery; and requested discovery

sanctions, which the trial court denied. DRMC finally, on July 23, 2020, filed its Petition

to compel arbitration.

DRMC attributes the delay, in part, to the impact of the pandemic on the courts

but has not established that this prevented DRMC from filing a petition to compel

arbitration, other than for three months when motions were not calendared because of

Covid. DRMC has not provided any valid justification for not filing its Petition before

the pandemic or for delaying a year to file its Petition to compel arbitration after the

Labor Commissioner’s July 2019 order.

Fleming, supra, 49 Cal.App.5th 73, is analogous to the instant case. In June 2017,

the Fleming plaintiff employee, Alfons Younan, filed with the Labor Commissioner, a

labor claim seeking unpaid wages against his employer, Fleming Distribution Company.

The employer sent the Labor Commissioner a letter requesting dismissal of the claim

because the parties signed an arbitration agreement agreeing to resolve all claims related

to employment by binding arbitration. The employer threatened to file a motion to

compel arbitration if the claim was not dismissed. Even though the claim was not

dismissed, the employer did not file a motion to compel arbitration. In July 2018, the

employer filed an answer with the Labor Commissioner, asserting the defense that

arbitration was the proper forum, and requesting dismissal of the claim. (Fleming, supra,

at p. 77.)

28 In August 2018, the Fleming employer filed a motion with the Labor

Commissioner to dismiss the claim on the ground the employee’s employment agreement

included a provision agreeing to arbitration of his claim. Again, the employer stated that

if the claim was not dismissed, the employer would file a motion to compel arbitration.

The Labor Commissioner denied the employer’s motion to dismiss the claim on the

ground the employer had failed to obtain a stay from the superior court. The Labor

Commissioner heard the employee’s wage claim in December 2018, and issued an order

favorable to the employee. Thereafter, the employer filed in the superior court a notice of

appeal of the Labor Commissioner’s order. A trial was scheduled for March 2019.

In February 2019, the Fleming employer filed a petition to compel arbitration, stay

proceedings, vacate the Labor Commissioner’s order, and dismiss the action. (Fleming,

supra, 49 Cal.App.5th at p. 78.) The Fleming employer argued in its petition to compel

arbitration that the matter should be arbitrated because the arbitration agreement was

governed by the FAA, which preempts California Labor Code section 229. That statute

allows employees to pursue their wage claims in court even if they agreed to arbitrate

such claims. The employer also argued it did not waive its right to arbitration because it

had consistently requested the matter dismissed and arbitrated. (Fleming, supra, at p.

78.)

The trial court in Fleming denied the employer’s petition to compel arbitration.

The trial court found “Fleming waived its right to arbitration by taking steps inconsistent

with an intent to invoke arbitration, including delaying its request to the superior court

29 until after a full hearing took place and the Labor Commissioner issued its order.”

(Fleming, supra, 49 Cal.App.5th at p. 79.) In reaching its holding, the court in Fleming

noted that, when the Labor Commissioner in Fleming accepted the employee’s complaint

and scheduled a hearing on the merits, the employer again stated that it was going to

move to compel arbitration if the claim was not dismissed, yet did not do so. The

employer also failed to request a continuance or otherwise act in furtherance of asserting

that the matter had to be arbitrated. Instead, the employer fully participated in the Labor

Commissioner hearing by presenting documentary evidence, witness testimony, and

argument, thereby learning the employee’s trial strategies at the hearing.

The Fleming court concluded that under these circumstances and in light of the

employer’s “repeated choice not to move to compel arbitration in the trial court, coupled

with its full participation in the Labor Commissioner proceedings, the trial court correctly

determined Fleming did not ‘properly invoke the right to arbitrate’ by ‘tak[ing]

affirmative steps to implement the process’ and ‘participate in conduct consistent with the

intent to arbitrate the dispute.’ [Citation.]” (Fleming, supra, 49 Cal.App.5th at p. 82.)

The Fleming court added that, “[e]ven after the Labor Commissioner issued its

order, Fleming appealed from the order but did not exercise its right to immediately seek

to compel arbitration and stay the superior court proceedings. Further, the trial court’s

register of actions indicates the parties engaged in discovery after the filing of the notice

of appeal; there are multiple entries relating to Younan’s request for ‘compliance with . . .

[his] request for production of documents’ and other discovery, as well as a lengthy court

30 order granting Younan’s discovery requests.” (Fleming, supra, 49 Cal.App.5th at p. 83.)

It was not until 20 months after the employee filed his Labor Commissioner complaint

and 2 months after the Labor Commissioner issued its decision that the employer finally

filed a superior court petition to compel arbitration. The Fleming court concluded that

the trial court properly found this delay was not reasonable and therefore supported a

finding of waiver. (Fleming, supra, at p. 83.)

In the instant case, DRMC’s delay filing its Petition to compel arbitration was

even longer than the delay in Fleming. Respondents filed their individual claims in July

and September 2015 or 2016, and the Labor Commissioner issued its award in July 2019.

DRMC did not file its Petitions to compel arbitration and request for a stay until July

2020. DRMC thus delayed filing its Petitions at least four years after Respondents filed

their individual claims with the Labor Commissioner, and 12 months after the Labor

Commissioner issued its award. As in Fleming, this delay was not reasonable or

consistent with the intent to arbitrate the dispute. During the delay, DRMC participated

in Labor Commissioner proceedings, appealed the Labor Commissioner’s decision in

state court, participated in discovery proceedings, unsuccessfully attempted to remove its

state court case to the federal court, and filed unsuccessful motions to have the case

related to other cases and transferred to a different courtroom.

We recognize that the instant case is distinguishable from Fleming in that Fleming

did not involve a simultaneous Union grievance subject to arbitration under a CBA.

Fleming nevertheless supports the determination that, under the circumstances in the

31 instant case, DRMC’s delay waived any right it may have had to arbitrate the individual

claims.

In Fleming, the employer argued there was no waiver because, despite its delay in

filing its petition to compel arbitration, the employee failed to show he was prejudiced by

the delay. The employer asserted that a finding of prejudice required that the employer’s

delay filing the petition to compel arbitration and request for a stay must have caused the

employee “to incur extensive costs and legal expenses and/or an unfair disadvantage that

would materially prejudice his position in any future arbitration.” (Fleming, supra, 49

Cal.App.5th at p. 83.) Even in the absence of such circumstances, the Fleming court

disagreed “there was ‘no evidence’ of prejudice to support a waiver.” (Ibid.) The

Fleming court concluded there was sufficient evidence of prejudice because “prejudice

can be found ‘where the petitioning party has unreasonably delayed seeking arbitration or

substantially impaired an opponent’s ability to use the benefits and efficiencies of

arbitration.’ [Citation.]” (Ibid., quoting Hoover, supra, 206 Cal.App.4th at p. 1205; see

also Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 216 [“a defendant

should timely seek relief either to compel arbitration or dispose of the lawsuit, before the

parties and the court have wasted valuable resources on ordinary litigation.”].)

The Fleming court explained that, although the employee did not have an attorney

during the Labor Commissioner proceedings and therefore did not suffer monetary loss in

the form of attorney fees and costs, he was represented in the superior court action and

engaged in discovery. The employee also suffered the prejudice of waiting several years

32 to collect wages that at least one tribunal determined he was owed, when the matter could

have been arbitrated earlier, assuming arbitration was proper. “As noted, the benefit of

arbitration is that it is a relatively efficient and cost-effective way of resolving disputes.”

(Fleming, supra, 49 Cal.App.5th at p. 83.) By the time the employer filed its petition to

compel arbitration, “all benefits of a speedy resolution [the employee] could have

obtained through arbitration have been lost. (Sobremonte v. Superior Court, supra, 61

Cal.App.4th at p. 996 [‘any benefits they may have achieved from arbitration have been

lost’]; St. Agnes, supra, 31 Cal.4th at p. 1204 [prejudice is found where ‘the petitioning

party’s conduct has substantially undermined [the] important public policy [in favor of

arbitration] or substantially impaired the other side’s ability to take advantage of the

benefits and efficiencies of arbitration’].) We conclude [the employee] suffered

cognizable prejudice.” (Fleming, supra, at pp. 83-84.)

As in Fleming, Respondents suffered cognizable prejudice of waiting years to

collect wages that the Labor Commissioner determined were owed, when the matter

could have been arbitrated earlier. DRMC argues there was no prejudice because, unlike

in Fleming, DRMC could not compel arbitration until the Labor Commissioner

proceedings were completed in July 2019. But even assuming this is true, DRMC

unreasonably delayed filing its Petition to compel arbitration for a year after completion

of the Labor Commissioner proceedings.

Fleming notes that, “although prejudice has been held to be ‘critical’ in

determining waiver, we also note the Supreme Court has cautioned courts to examine

33 each case in context: ‘no single test delineates the nature of the conduct that will

constitute a waiver of arbitration.’ (St. Agnes, supra, 31 Cal.4th at p. 1195.) Moreover, a

party’s unreasonable delay has also been considered a significant and determinative

issue.” (Fleming, supra, 49 Cal.App.5th at p. 84.) The Fleming court further noted that

the California Supreme Court in Wagner Construction Co. v. Pacific Mechanical Corp.[,

supra,] 41 Cal.4th [at pp.] 29-30, “observed that a party’s unreasonable delay in

demanding or seeking arbitration, in and of itself, may constitute a waiver of a right to

arbitrate. ‘[A] party may [not] postpone arbitration indefinitely by delaying the

demand. . . . [¶] When no time limit for demanding arbitration is specified, a party must

still demand arbitration within a reasonable time. [Citation.] . . . “[W]hat constitutes a

reasonable time is a question of fact, depending upon the situation of the parties, the

nature of the transaction, and the facts of the particular case.”’” (Fleming, supra, at p.

84; see also Hoover, supra, 206 Cal.App.4th at p. 1205.)

After Fleming was decided, the United States Supreme Court recently held in

Morgan v. Sundance, Inc. (2022) 142 S. Ct. 1708 (Morgan), that under federal law a

showing of prejudice is not required to establish waiver of the right to arbitrate. After

Fleming was decided, the United States Supreme Court recently held in Morgan, that

under federal law, a showing of prejudice is not required to establish waiver of the right

to arbitrate.

In Morgan, Robyn Morgan sued her former employer, Sundance, Inc., for

committing federal labor law violations. As part of her job application, Morgan agreed to

34 “‘use confidential binding arbitration, instead of going to court.’” (Morgan, supra, 142

S. Ct. at p. 1711.) Sundance did not initially move to compel arbitration or stay the case.

Over a period of 8 months, Sundance filed a motion to dismiss, filed an answer, and

engaged in mediation, before moving to compel arbitration.

The district court denied Sundance’s motion to compel arbitration based on

waiver. The Eighth Circuit disagreed on the ground Morgan suffered no prejudice.

Morgan sought review from the U.S. Supreme Court, which agreed to hear the case to

resolve a split in the federal courts of appeals as to whether prejudice is required to show

a waiver of the right to arbitration under the FAA. The U.S. Supreme Court in Morgan

agreed that prejudice was not required to show a waiver based on section 6 of the FAA (9

USCA § 6), which provides that any application to the court “shall be made and heard in

the manner provided by law for the making and hearing of motions,” except as otherwise

therein expressly provided. (9 U.S.C. § 6; Morgan, supra, 142 S. Ct. at p. 1714.)

The court in Morgan explained that the phrase “any application” in section 6 of

the FAA includes applications to stay a court case and compel arbitration under sections

3 and 4 of the FAA and noted that “a federal court assessing waiver does not generally

ask about prejudice.” (Morgan, supra, 142 S. Ct. at p. 1713.) The Morgan Court thus

concluded that the Eighth Circuit erred in imposing an arbitration-specific requirement of

prejudice. It noted that the courts that required prejudice did so based on the federal

policy favoring arbitration. The Morgan court found that that policy “does not authorize

35 federal courts to invent special, arbitration-preferring procedural rules” such as the

judicially imposed rule requiring a finding of prejudice when ruling on waiver.

This is because, “[t]o decide whether a waiver has occurred, the court focuses on

the actions of the person who held the right; the court seldom considers the effects of

those actions on the opposing party.” (Morgan, supra, 142 S. Ct. at p. 1713.) The usual

federal rule of waiver therefore does not include a prejudice requirement. (Id. at p.

1714.) This case is distinguishable from Morgan in that the instant case concerns state

statutory rights and law, rather than rights asserted under federal law.

Even assuming that under state law in the instant case a showing of prejudice is

required, DRMC’s delay petitioning to compel arbitration was prejudicial under Fleming.

It significantly diminished the benefits of arbitration by postponing Respondents’

recovery, wasting Respondents’ and others’ time participating in litigating the labor

dispute in a separate forum before arbitrating the case, and providing DRMC with the

unfair advantage of participating in a trial run of litigating the case before the Labor

Commissioner. Thus, regardless of whether state law or federal law applies, the trial

court’s findings of waiver and prejudice are well supported by the record.

We thus conclude the trial court properly determined that DRMC waived its right

to arbitration based on DRMC’s delay in petitioning to compel arbitration. DRMC’s

conduct was inconsistent with an intent to arbitrate Respondents’ individual claims,

DRMC invoked the litigation machinery, including filing a de novo appeal of the Labor

Commissioner’s decision in state court, and DRMC delayed petitioning to compel

36 arbitration for a substantial period of time, which was prejudicial to Respondents. The

trial court therefore did not err in ruling that DRMC waived any right DRMC may have

had to arbitrate Respondents’ individual claims.

3. Estoppel

DRMC argues the Union’s delay in initiating arbitration of the 2015 Union group

grievance until August 2020, estopped Respondents from arguing DRMC waived its right

to arbitrate. DRMC asserts that Respondents are estopped from blaming DRMC for the

delay or for any related prejudice, because the Union agreed to arbitrate the Union group

grievance, and any delay between May 2015 and August 2020, was voluntarily caused

either by Respondents, their Union, or the Labor Commissioner. We disagree.

First, the Union group grievance and related proceedings are separate and

independent proceedings from Respondents’ individual claims brought by each

respondent, and not by the Union. Second, Respondents’ individual claims were filed

and decided in a different forum than the Union group grievance. Respondents submitted

their claims to the Labor Commissioner for resolution. The Union submitted its group

grievance to arbitration under the CBA. Third, although the Union was a party, acting on

behalf of Respondents as well as other RNs when pursuing the Union group grievance,

the Union is not a party to Respondents’ individual claims. Fourth, Respondents were

not responsible for the Union’s delay initiating arbitration of the Union group grievance

or for the Union agreeing to arbitrate the Union group grievance. Respondents are thus

not estopped from arguing DRMC waived arbitration of Respondents’ individual claims.

37 V.

DISPOSITION

The trial court’s orders on October 26, 2020, and November 6, 2020, denying

DRMC’s amended Petitions to compel arbitration and for a stay are affirmed.

Respondents are awarded their costs on appeal.

CODRINGTON J.

We concur:

RAMIREZ P. J.

RAPHAEL J.

38 Filed 1/6/23 COURT OF APPEAL -- STATE OF CALIFORNIA FOURTH DISTRICT DIVISION TWO

ORDER

DESERT REGIONAL MEDICAL CENTER, INC., E076058 Plaintiff and Appellant, v. (Super. Ct. Nos. PSC1905547, LEAH MILLER, PSC1905545 & PSC1905549) Defendant and Respondent. ___________________________________ DESERT REGIONAL MEDICAL CENTER, INC., E076069

Plaintiff and Appellant, v. LYNN FONTANA, Defendant and Respondent. ___________________________________ DESERT REGIONAL MEDICAL CENTER, INC., E076205 Plaintiff and Appellant, v. ORDER CERTIFYING RENITA ROMERO, OPINION FOR PUBLICATION Defendant and Respondent. _______________________________________

THE COURT

Requests having been made to this court pursuant to California Rules of Court, rule 8.1120(a), for publication of a nonpublished opinion heretofore filed in the above matter on December 13, 2022, and it appearing that the opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c),

IT IS ORDERED that said opinion be certified for publication pursuant to California Rules of Court, rule 8.1105(b). The opinion filed in this matter on December 13, 2022, is certified for publication.

CERTIFIED FOR PUBLICATION CODRINGTON J. We concur: