Montano v. Wet Seal, 1/30/17, 2DCA/4
Plaintiff brought a putative class action against Wet Seal alleging violations of California’s Labor Code, and she also included a PAGA claim. The parties had an arbitration agreement that contained a waiver of the right to join claims or bring an action as a private attorney general – i.e., both a class action and PAGA waiver. However, the agreement also provided: “If either party initiates or joins in a lawsuit or arbitration against the other party in violation of this waiver and the waiver is found to be unenforceable for any reason by a court or arbitrator, then this entire arbitration agreement is void and unenforceable by the parties.” This is the opposite of a “severability” provision. The trial court denied the motion to compel arbitration, and then granted plaintiff’s motion to compel discovery. Wet Seal appealed. Held: Affirmed.
First, the non-severability language is clear and Wet Seal didn’t put up much of a fight on that point. And why would they: Who would want potentially staggering class claims decided in arbitration without any right to appeal?
Second, Code of Civil Procedure section 1281.4 requires a trial court to stay an action until a motion to compel arbitration is determined. Wet Seal argued that 1281.4 also requires a trial court to stay the case while a party appeals the denial of a motion to compel arbitration. The court noted that it had already rejected that proposition in Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385. As importantly, no statute authorizes an appeal of orders compelling discovery and the court rejected Wet Seal’s request to treat its appeal as a writ petition.
Hard to really see the value in pursuing this appeal.
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