Opinion
21-55562
01-06-2022
DAISY ALVAREZ, Plaintiff-Appellee, v. SHERATON OPERATING CORPORATION, a Delaware corporation; MARRIOTT INTERNATIONAL, INC., Defendants-Appellants,
NOT FOR PUBLICATION
Argued and Submitted December 8, 2021
Appeal from the United States District Court for the Central District of California D.C. No. 2:20-cv-03608-TJH-JC Terry J. Hatter, Jr., District Judge, Presiding
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
MEMORANDUM [*]
Defendants-appellants Sheraton Operating Corporation and Marriott International, Inc., appeal from the district court's order denying their motion to compel arbitration. The district court applied California law in holding that appellants waived their right to compel arbitration by its active litigation of the case over thirteen months. On appeal, appellants contend that the district court should have applied federal rather than California law, and that under federal law they did not waive their right to compel. We have jurisdiction under 28 U.S.C. § 1291.
The district court erred in applying California law. "[W]here the waiver of the right to compel arbitration implicates questions of arbitrability that 'affect the allocation of power' between a court and arbitrator, we have applied a federal law standard for determining whether an arbitration agreement has been waived." Newirth ex rel. Newirth v. Aegis Senior Cmtys., LLC, 931 F.3d 935, 940 (9th Cir. 2019) (quoting Sovak v. Chugai Pharm. Co., 280 F.3d 1266, 1270 (9th Cir. 2002)). The district court relied on Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1124 (9th Cir. 2008), but we applied California law in that case because "the parties [in Cox had] selected California law to govern the resolution of disputes arising out of the[ir] employment agreement." Id. at 1121. Here, by contrast, the parties agreed that their arbitration agreement "shall be governed by the Federal Arbitration Act."
Because federal law differs from California law and is more demanding of the party resisting arbitration, compare Newirth, 931 F.3d at 940 (articulating the federal standard), with Cox, 533 F.3d at 1124 (articulating the California standard), we reverse and remand to the district court to allow it to apply federal law. The panel will retain jurisdiction over any appeal from the decision of the district court.
Appellants filed a motion to strike documents in the supplemental excerpts of records on the ground that they were not filed with the district court (Dkt. 24). We GRANT the motion to strike.
REVERSED AND REMANDED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.