Opinion
H036567
11-03-2011
MILPITAS EMPLOYEES ASSOCATION, Plaintiff and Appellant, v. CITY OF MILPITAS, Defendant and Respondent; SANDY J. LUNA, Real Party in Interest and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super.Ct.No. CV108889)
I. INTRODUCTION
Appellant Sandy J. Luna was an employee of respondent City of Milpitas (City) and a member of appellant Milpitas Employees Association (MEA). Appellants contend that the trial court erred in (1) finding that Luna had waived his right to arbitrate his claim of constructive discharge without sufficient cause; and (2) denying their petition to enforce the court's prior order compelling arbitration. We will dismiss the appeal without reaching the merits because, as we will explain, the notice of appeal was not timely filed and therefore this court lacks appellate jurisdiction. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 (Silverbrand).)
II. FACTUAL AND PROCEDURAL BACKGROUND
After Luna received from the City a notice of intent to terminate his employment as a maintenance worker III for cause, he retired to avoid the loss of his retiree medical benefits. The MEA, represented by Local 270 of the Laborers' International Union of North America, subsequently filed a petition to compel arbitration of Luna's claim that he had been constructively discharged without sufficient cause in violation of the parties' memorandum of understanding. On May 14, 2008, the trial court granted the petition.
The arbitration process was not completed because Local 792 of the Laborers' International Union of North America subsequently advised the arbitrator that the arbitration was cancelled. Thereafter, a petition to enforce the arbitration order was filed by the MEA and Luna, who argued that Local 792 was not authorized to cancel the arbitration. The trial court found that the evidence showed that Luna had waived his right to arbitration, and denied the petition in its order of November 17, 2010.
Appellants filed their notice of appeal from the November 17, 2010 order denying their petition to enforce the arbitration order more than two months later, on February 7, 2011.
The November 17, 2010 order denying the petition to enforce the arbitration order is appealable as the functional equivalent of an order denying a petition to compel arbitration. (Code Civ. Proc., § 1294, subd. (a); see MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 655 [order declaring the arbitration provisions unenforceable is appealable as the functional equivalent of an order denying a petition to compel arbitration].)
III. DISCUSSION
At the outset, we will consider the threshold issue of whether this court has appellate jurisdiction. (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1024.) "[T]he filing of a timely notice of appeal is a jurisdictional prerequisite[.]" (Silverbrand, supra, 46 Cal.4th at p. 113.) " 'Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.' [Citations.] The purpose of this requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all. [Citation.]" (Ibid.)
The appropriate filing period for a notice of appeal is determined under the California Rules of Court. Rule 8.104(a) provides the general rule for filing a timely notice of appeal: "a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was served; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by a proof of service; or [¶] (3) 180 days after entry of judgment." These time limits are not extended when service is by mail. (Code Civ. Proc., § 1013, subd. (a) ; Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274.)
All further references to rules are to the California Rules of Court.
All further statutory references are to the Code of Civil Procedure.
In the present case, the record reflects that the superior court clerk served a file-stamped copy of the November 17, 2010 order denying the petition to enforce the arbitration order on the same day, November 17, 2010. Pursuant to rule 8.104(a)(1), the 60-day period to file a timely notice of appeal therefore expired on January 15, 2011. (See Alan v. American Honda Motor Co. (2007) 40 Cal.4th 894, 905.) Since appellants did not file their notice of appeal until February 7, 2011, the notice of appeal was untimely.
We asked the parties to submit supplemental briefing regarding whether the appeal from the November 17, 2010 order denying the petition to enforce the arbitration order must be dismissed because the notice of appeal was untimely filed. In its supplemental briefing letter, the City requests that the appeal be dismissed because the notice of appeal was untimely filed under rule 8.104(a)(1) more than 60 days after the superior court clerk served a file-stamped copy of the order. Appellants concede in their supplemental briefing letter that the notice of appeal was untimely filed under rule 8.104(a)(1). However, appellants request that we treat the untimely appeal as a petition for a writ of mandate vacating the November 17, 2010 order, on the ground that the trial court exceeded its jurisdiction in determining the waiver issue after the matter was referred to arbitration.
" 'It is well settled that a party is not entitled to obtain review of an appealable judgment or order by means of a petition for an extraordinary writ where he or she failed to timely file an appeal from the ruling. [Citations.] In Leach v. Superior Court [(1932) 215 Cal. 531], the Supreme Court held a writ would not lie where the petitioner "had a right to appeal from the order or judgment in question, and has permitted his time to elapse without perfecting an appeal therefrom." [Citation.] " . . . [T]here is no authority for treating an untimely appeal as a writ petition. [Citation.] To do so would be improper because a writ petition should be entertained only where there is no adequate remedy by appeal and the remedy by appeal is not made inadequate by a party's having neglected to submit his notice of appeal for filing within the time allowed. [Citation.]" [Citation.]' " (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459-1460.)
However, as one legal commentator has noted, "[a] few cases have entertained writ review after expiration of the appeal deadline where the lower court acted in excess of its jurisdiction or in violation of 'fundamental constitutional rights.' [Grinbaum v. Super.Ct. (1923) 192 Cal. 528, 556-557]—trial court exceeded jurisdiction by appointing guardian in insanity proceeding where alleged incompetent not given notice of proceeding or of application for appointment of guardian and did not appear; [Elder v. Justice's Court (1902) 136 Cal. 364, 367]—trial court acted in excess of jurisdiction where petitioner not given notice of trial date or that default judgment had been entered . . . ." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 3:7.3, p. 3-6; see also Annette S. v. Sharon S., supra, 130 Cal.App.4th at pp. 1459-1460; Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953-954.)
We decline appellants' invitation to treat their untimely appeal as a petition for writ of mandate since, as we will explain, we find no merit in the contention that writ review is appropriate because the trial court acted in excess of jurisdiction in deciding the waiver issue after referral to arbitration. Under the circumstances of this case, we believe that the trial court did not lack jurisdiction.
The general rule is that the court decides the question of waiver. Pursuant to Code of Civil Procedure section 1281.2, subdivision (a), "petitions to compel may be denied when the right to arbitrate has been waived." (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 28.) The "correct conclusion that questions of waiver are for the court rather than the arbitrator require[s] no further justification than the Legislature's explicit statement to that effect in section 1281.2, subdivision (a). [Citation.]" (Ibid.)
Section 1281.2, subdivision (a) provides, "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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: [¶] The right to compel arbitration has been waived by the petitioner . . . ."
In Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951 (Engalla), the California Supreme Court addressed the issue of whether a waiver claim should be resolved by the arbitrator, rather than the court. Our Supreme Court determined that where "one of the parties to the arbitration claims the other party has waived its right to compel arbitration within the context of a petition to compel arbitration[,] [s]ection 1281.2, subdivision (a), gives the court jurisdiction to decide such a waiver claim." (Engalla, supra, 15 Cal.4th at p. 982, fn. 14.) While the court acknowledged that after arbitration is compelled the arbitrator decides procedural questions, the court explained that "[h]ere, the question is different and more fundamental—whether [the petitioner], by its delay or other acts or omissions, has in fact waived its right to compel arbitration. Section 1281.2, subdivision (a), gives the trial court jurisdiction to decide this question when petitioned to compel arbitration." (Id. at p. 982, fn. omitted.)
We find that the waiver issue in the present case similarly arose in the context of a petition to compel arbitration. Appellants filed a petition to compel arbitration, which the trial court granted. After the City refused to arbitrate, appellants filed a second petition, captioned, in part, "petition to enforce arbitration order." In their second petition, appellants argued that the trial court's prior arbitration order should be enforced by compelling the City to arbitrate, since the City was refusing to arbitrate on the erroneous ground that Luna had subsequently cancelled the arbitration. Thus, appellants were petitioning, again, to compel the City to arbitrate, and the issue of whether Luna had waived his right to arbitrate arose within the context of that second petition. Under Engalla, the trial court therefore had jurisdiction to decide the waiver issue. (Engalla, supra, 15 Cal.4th at p. 982.)
We observe that section 1292.6 provides, "After a petition has been filed under [Title 9], the court in which such petitions was filed retains jurisdiction to determine any subsequent petition involving the same agreement to arbitrate and the same controversy, and any such subsequent petition shall be filed in the same proceeding."
Having determined that the notice of appeal was not timely filed within the 60-day period provided by rule 8.104(a)(1), we must dismiss the appeal. The California Supreme Court has instructed that " '[i]f it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made.' [Citations.]' " (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.)
IV. DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to respondent City of Milpitas.
BAMATTRE-MANOUKIAN, ACTING P. J.
I CONCUR:
DUFFY, J. WALSH, J. CONCURRING.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I concur in the dismissal of this appeal on the basis that the notice of appeal was untimely.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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