Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG03129353.
BANKE, J.
I. Introduction
In May 2006, the trial court entered summary judgment in this breach of contract case on the ground plaintiff and appellant Edmond Agbemadon (Agbemadon) failed to initiate arbitration within 180 days of the California Department of Transportation’s (Caltrans’s) denial of his claim for additional compensation. Agbemadon, a subcontractor of defendant and respondent M.C.M. Construction, Inc. (MCM), appealed. However, after numerous extensions of time, he failed to file an opening brief, and his appeal was dismissed.
In March 2010, Agbemadon finally filed a demand for arbitration. MCM rejected it and moved to enforce the judgment. Agbemadon, in turn, filed a petition to compel arbitration. The trial court denied the petition on the ground the summary judgment was final and preclusive on whether arbitration had been timely sought. The court also ruled Agbemadon had taken actions inconsistent with preserving his right to arbitrate and therefore had waived that right “years ago.” Having denied Agbemadon’s petition to compel arbitration, the court also denied MCM’s motion to enforce the judgment. Agbemadon has once again appealed. We affirm the order denying his belated petition to arbitrate.
II. Background
The 1995 Subcontract
MCM and Caltrans entered into a contract for a roadway project in Alameda County (the General Contract). The General Contract included Caltrans’s Standard Specifications dated July 1992. Section 9-1.10 of the specifications provided in pertinent part: “Claims (demands for monetary compensation or damages) arising under or related to performance of the contract shall be resolved by arbitration unless the Department and the Contractor agree in writing, after the claim has arisen, to waive arbitration and to have the claim litigated in a court of competent jurisdiction.... [¶] Arbitration shall be initiated by a Demand for Arbitration made in compliance with the requirements of said regulations. A Demand for Arbitration by the Contractor shall be made not later than 180 days after the date of service in person or by mail on the Contractor of the final written decision by the Department on the claim.”
In 1995, MCM and Agbemadon entered into a subcontract for electrical work in connection with the Caltrans project (the Subcontract). The Subcontract expressly incorporated all terms and provisions of the General Contract, including the Standard specifications, and Agbemadon agreed that he had read and examined the General Contract before entering into the Subcontract.
2001 Rejection of Claim, Failure to Arbitrate, and Adverse Summary Judgment
After completing work on the project, Agbemadon submitted a claim for additional compensation. In March 2001, Caltrans rejected the claim, and in May 2001, MCM advised Agbemadon he could “ ‘pursue this matter in Arbitration.’ ”
More than two years later, in November 2003, Agbemadon filed this lawsuit against MCM and Caltrans, seeking the additional compensation that had been denied. After two years of litigation, MCM moved for summary judgment on the ground the Subcontract incorporated the arbitration clause in the General Contract and required Agbemadon to have initiated arbitration within 180 days of Caltrans’s denial of his claim. The trial court agreed, ruling Agbemadon “failed to exhaust contractual arbitration remedies, ” and entered judgment for MCM in May 2006. The court also awarded MCM contractual attorney fees of $36,468.30.
Agbemadon appealed, but after numerous extensions of time failed to file an appellant’s opening brief. Accordingly, his appeal was dismissed in February 2007.
2010 Attempt to Arbitrate
In March 2010, four years after judgment was entered against him, Agbemadon filed a demand to arbitrate with the American Arbitration Association (AAA). MCM advised AAA summary judgment had been entered against Agbemadon on the ground he had not timely sought arbitration. Agbemadon responded the judgment did not preclude arbitration.
On August 24, 2010, MCM sought to enforce the summary judgment and compel dismissal of the AAA arbitration proceeding. Agbemadon, in turn, filed a petition to compel arbitration. He claimed the Subcontract failed to unambiguously specify a time limit in which to demand arbitration, and this lack of an explicit time limitation exempted his claim for additional compensation from any limitations period. He also asserted res judicata did not apply, claiming the adverse summary judgment did not preclude a subsequent petition to compel arbitration. MCM asserted the opposite, contending Agbemadon’s time to demand arbitration had long since passed.
The trial court again agreed with MCM and denied Agbemadon’s petition to compel arbitration. It ruled Agbemadon had “no right to an arbitration on this dispute. [He] seeks arbitration of the same claims that were the subject of the litigation and filed by [him] on November 26, 2003. The Court previously heard and decided the non-viability of that claim and entered Judgment based on an order granting a motion for summary judgment in favor of [MCM] on May 19, 2006. That order included a specific finding that [Agbemadon’s] claim is barred by [his] failure to seek arbitration within 180 days after [his] claim had been denied. This judgment is final; it was appealed, the appeal dismissed on February 22, 2007, and the motion for reconsideration to the Court of Appeal was denied on March 26, 2007.” In light of its denial of Agbemadon’s petition to compel arbitration, the court also denied MCM’s motion to enforce the judgment.
III. Discussion
Standards of Review
Agbemadon contends the trial court erred in denying his 2010 petition to compel arbitration on the ground the 2006 summary judgment embraced an explicit finding that his claims were barred by failure to seek arbitration within 180 days after Caltrans denied his claim for additional compensation. Whether the summary judgment has such preclusive effect presents a question of law on undisputed facts which we review denovo. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 10.)
Agbemadon also contends the trial court erred in further concluding that he has, in any case, waived his right to arbitrate. “Whether there has been a waiver of a right to arbitrate is ordinarily a question of fact, and a finding of waiver, if supported by sufficient evidence, is binding on an appellate court.” (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836.)
Res Judicata
“ ‘As generally understood, “[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.” [Citation.] The doctrine “has a double aspect.” [Citation.] “In its primary aspect, ” commonly known as claim preclusion, it “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary aspect, ” commonly known as collateral estoppel, “[t]he prior judgment... ‘operates’ ” in “a second suit... based on a different cause of action... ‘as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.’ [Citation.]” [Citation.] “The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” ’ ” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken), quoting People v. Barragan (2004) 32 Cal.4th 236, 252-253.)
Additionally, res judicata in its “primary respect”—that is, precluding subsequent litigation between the same parties—bars relitigation not only of issues that were actually tried in the first lawsuit, but also any issue that could have been tried therein but was not. (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675.) Thus, it is sometimes said that “res judicata” (i.e., claim preclusion) is broader in scope than “collateral estoppel” (i.e., issue preclusion). (See Mark v. Spencer (2008) 166 Cal.App.4th 219, 230, quoting Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.)
The trial court was on solid ground in concluding the 2006 summary judgment, which has long been final, bars Agbemadon’s 2010 effort to arbitrate his claim for additional compensation. The parties are identical—Agbemadon and MCM. And the substance of his claim is identical—that he is owed additional compensation for his work on the Caltrans project. (See Boeken, supra, 48 Cal.4th at p. 798 [“When two actions involv[e] the same parties [and] seek compensation for the same harm, they generally involve the same primary right.”].) It makes no difference that Agbemadon has employed different legal vehicles—initially a lawsuit for breach of contract and now a petition to compel arbitration. Although a plaintiff may employ multiple legal theories for recovery, one injury gives rise to only one claim of relief. (Ibid.)
In addition, the trial court expressly determined, in granting summary judgment to MCM, that Agbemadon had failed to timely seek arbitration—i.e., within 180 days of Caltrans’s denial of his claim. The court therefore sustained MCM’s affirmative defense that he had failed to exhaust his contractual remedies. Agbemadon could have challenged this determination on appeal, and, indeed, he filed a timely notice of appeal. However, he never filed an appellant’s brief, and therefore his appeal was dismissed. Accordingly, the trial court’s prior determination that (a) he was subject to a contractual arbitration provision and (b) under that provision he was required to seek arbitration within 180 days of the denial of his claim is final and conclusive. It is also dispositive of Agbemadon’s current effort to institute arbitration proceedings. It has already been determined that his time to pursue arbitration has long since passed.
Agbemadon contends “summary judgment dismissing a suit on an arbitratable claim is not res judicata and does not preclude a petition to compel arbitration, ” citing Johnson v. Siegel (2000) 84 Cal.App.4th 1087 (Johnson). In Johnson, the plaintiff sued the sellers of a home he had purchased to recover damages for flooding. (Id. at pp. 1090-1092). Pursuant to an arbitration clause in the purchase agreement, the sellers moved for summary judgment. (Id. at pp. 1090-1091.)The trial court granted the motion. (Id. at p. 1092.) However, the arbitration clause did not include a time limit to request arbitration. Accordingly, two days after the court’s ruling, the plaintiff requested arbitration. (Id. at pp. 1092, 1099) The sellers refused to arbitrate, asserting the trial court’s summary judgment barred the plaintiff’s demand. (Id. at pp. 1092-1093.) The Court of Appeal disagreed. It acknowledged that “[w]here an arbitration agreement contains a prescribed time in which to initiate arbitration, the timely commencement of the arbitration process is a condition precedent to the right to arbitrate, and the failure to meet that requirement operates as a forfeiture of that right.” (Id. at p. 1098.) But since the arbitration clause in the purchase agreement did not specify a time limit, the summary judgment did not bar the plaintiff from demanding arbitration within a reasonable time. (Id. at pp. 1098-1099.)
Johnson is inapposite. Unlike in Johnson, the trial court here determined there was a 180-day time limit to seek arbitration and granted summary judgment to MCM because Agbemadon had failed to timely avail himself of that contractual remedy.
Accordingly, Agbemadon’s insistence that he had a “reasonable” period of time in which to demand arbitration after MCM “refused” to arbitrate misses the mark. The trial court determined he had 180 days to seek arbitration after Caltrans denied his claim, and he failed to do so. His assertion that arbitration is “favored” and his claims have never been heard on the “merits” likewise goes nowhere. He could have had his claims heard on the merits, but he failed to timely seek arbitration. And if he disagreed with the trial court’s ruling in that regard, he could have perfected his appeal from the summary judgment. Instead, he abandoned it, rendering the judgment final and conclusive.
Similarly, Agbemadon’s assertion that (a) there is “a genuine dispute” as to whether he was subject to a 180-day period (or whether a “reasonable” period of time applied) and (b) timeliness of an arbitration demand is a matter for the arbitrator to decide, is not an issue he can pursue at this late date. He could have advanced this contention in opposition to MCM’s motion for summary judgment. He did not; in fact, the 180-day time period was an undisputed material fact offered in support of the motion. Accordingly, the trial court determined he was subject to a 180-day period to seek arbitration—a determination that was the underpinning of the grant of summary judgment and is now final and conclusive.
Furthermore, a trial court can determine whether a plaintiff has timely demanded arbitration, or has not done so and thus waived the right to arbitrate. (See Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 321.) Accordingly, there was no jurisdictional impediment to the trial court determining Agbemadon had not timely sought arbitration and thus had failed to exhaust his contractual remedies, entitling MCM to summary judgment on his complaint for breach of contract.
In sum, this case falls within the established rule recognized by Johnson—that “[w]here an arbitration agreement contains a prescribed time in which to initiate arbitration, the timely commencement of the arbitration process is a condition precedent to the right to arbitrate, and the failure to meet that requirement operates as a forfeiture of that right.” (Johnson, supra, 84 Cal.App.4th at p. 1098.)
Since we conclude the trial court properly gave preclusive effect to the prior summary judgment and correctly dismissed Agbemadon’s belated petition to compel arbitration on that ground, we need not, and do not, consider the trial court’s determination that he also, by inconsistent actions, waived his right to arbitrate.
IV. Disposition
The order denying Agbemadon’s petition to compel arbitration is affirmed.
We do not decide whether MCM is entitled to an additional award of contractual attorney fees as the party prevailing on appeal. We leave that determination for the trial court should MCM make a motion for fees on remand.
We concur: Marchiano, P. J., Margulies, J.