Opinion
F082272
12-22-2021
JACLYN L. KUENZINGER, Plaintiff and Respondent, v. DOCTORS MEDICAL CENTER MODESTO, INC., Defendant and Appellant.
Hill, Farrer & Burrill, Michael S. Turner and E. Sean McLoughlin for Defendant and Appellant. Mayall Hurley, William J. Gorham and Vladimir J. Kozina, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. CV-20-002799, Timothy W. Salter, Judge. (Retired Judge of the Stanislaus Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Hill, Farrer & Burrill, Michael S. Turner and E. Sean McLoughlin for Defendant and Appellant.
Mayall Hurley, William J. Gorham and Vladimir J. Kozina, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Defendant Doctors Medical Center of Modesto, Inc., appeals from an order denying its petition to compel arbitration of claims brought by a former employee under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Some of defendant's claims of legal error were decided in Herrera v. Doctors Medical Center of Modesto, Inc. (2021) 67 Cal.App.5th 538 (Herrera), another case in which defendant challenged the superior court's refusal to compel arbitration. Defendant did not file a petition for review in Herrera and that August 2021 decision became final in October 2021.
Unlabeled statutory references are to the Labor Code.
We again conclude that (1) PAGA representative claims are not subject to arbitration pursuant to an employee's predispute arbitration agreement without the state's consent and (2) this rule of California law is not preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). We also conclude arbitration is not required by federal labor law because (1) resolution of plaintiff's Labor Code claims does not require choosing among competing interpretations of the collective bargaining agreement and (2) the collective bargaining agreement does not contain a clear and unmistakable waiver of plaintiff's right to a judicial forum for the Labor Code claims.
We therefore affirm the order denying the petition to compel arbitration.
FACTS
Plaintiff Jaclyn L. Kuenzinger was hired by defendant in June 2019 to work as a sterile processing technician. She electronically signed a four-page document titled "FAIR TREATMENT PROCESS AND MUTUAL ARBITRATION AGREEMENT," which set forth a process that requires certain disputes be submitted to final and binding arbitration before the American Arbitration Association. Plaintiff's employment was terminated in December 2019.
Sterile processing technicians and certain other workers employed by defendant are represented by the Service Employees International Union-United Healthcare Workers (Union). Union and defendant negotiated a series of collective bargaining agreements, including one that was effective from July 1, 2017, through June 20, 2020 (CBA).
Article 9 of the CBA sets forth a mandatory process for resolving any grievance between an employee or the Union and defendant. The process ends in binding arbitration. A grievance is defined as "a dispute as to the interpretation, meaning or application of a specific provision of this [CBA]."
Article 11 of the CBA addresses hours of work, overtime and scheduling. Section 4.a of that article states: "The Facility will comply with the applicable Industrial Welfare Commission Wage Order regarding meal periods, meal period waivers, missed meal period penalties, and 'on duty' meal period agreements."
Article 13 of the CBA addresses compensation. Section 5.d of that article states: "The Facility will comply with its obligations under state law regarding paycheck stubs."
Article 17 of the CBA addresses health and safety. Section A of that article states: "The Facility has the obligation to provide a safe and healthy environment for Employees and patients. The Facility shall comply with all applicable federal and California laws and regulations pertaining to occupational and general safety and health standards." None of the CBA's provisions address employee seating.
PROCEEDINGS
In April 2020, plaintiff's attorney mailed a written notice to defendant and the Labor and Workforce Development Agency pursuant to section 2699.3. The notice alleged defendant (1) violated section 226, subdivision (a)(7) by including plaintiff's full social security number on her final wage statement; (2) violated section 1198 by failing to provide seating in accordance with section 14(A) of Industrial Welfare Commission Order 201001; and (3) was liable for civil penalties due to missed or untimely meals. The agency did not respond to the letter.
Section 1198 states: "The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful."
In June 2020, plaintiff filed a complaint for civil penalties under PAGA for violations of sections 226, subdivision (a)(7), 226.7, 512, and 1198. In response, defendant filed a petition to compel arbitration and stay the action. In November 2020, the superior court filed a minute order denying the petition to compel arbitration. Defendant appealed.
DISCUSSION
I. CALIFORNIA LAW DOES NOT REQUIRE ARBITRATION
Defendant contends that California law, including Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), requires arbitration of the PAGA representative claims pursued by plaintiff. Defendant interprets Iskanian to only prohibit the enforcement of PAGA waivers. We addressed and rejected this argument in Herrera. Like many Court of Appeal decisions, Herrera adopted the rule of law that, without the state's consent, arbitration of a PAGA representative claim cannot be compelled under a predispute arbitration agreement. (Herrera, supra, 67 Cal.App.5th at pp. 549-550.)
Defendant argues that Herrera and the cases cited therein were wrongly decided. Having considered this argument, we again conclude that California law does not require arbitration in this case. The applicable rule of California law is that "a former employee who is authorized to pursue PAGA representative claims cannot be compelled to arbitrate those claims pursuant to a predispute arbitration agreement." (Herrera, supra, 67 Cal.App.5th at pp. 549-550.) Both the four-page agreement signed by plaintiff in June 2019 and the CBA were predispute arbitration agreements because they were made before the alleged Labor Code violations occurred. Furthermore, the state has not consented to arbitration under either agreement. Therefore, under the rule of law set forth in Herrera and many other cases, we conclude that plaintiff cannot be compelled to arbitrate the PAGA claims being pursued in this litigation.
II. PREEMPTION UNDER THE FAA
Defendant also contends that federal preemption under FAA requires this court to reverse the superior court and direct it to issue an order compelling arbitration. Defendant argues the rule of California law that the state or an authorized representative must consent to the arbitration of a PAGA claim is preempted by the FAA. We disagree.
The right to arbitration is a matter of contractual consent and depends on whether an agreement to arbitrate exists. (Code Civ. Proc., § 1281.2.) Thus, a party cannot be required to submit to arbitration any dispute which he or she has not agreed so to submit. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) The existence of an agreement to arbitrate is equally important under the FAA. Its principal purpose is to" 'ensur[e] that private arbitration agreements are enforced according to their terms.' [Citations.]" (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 344.)
Our Supreme Court has considered the FAA's scope and concluded that "a PAGA claim lies outside the FAA's coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship." (Iskanian, supra, 59 Cal.4th at p. 386.)" 'Without the state's consent, a predispute agreement between an employee and an employer cannot be the basis for compelling arbitration of a representative PAGA claim because the state is the owner of the claim and the real party in interest, and the state was not a party to the arbitration agreement.'" (Herrera, supra, 67 Cal.App.5th at p. 549.)
In this case, the state is not a party to an arbitration agreement because (1) the state and defendant did not enter into an arbitration agreement and (2) plaintiff and defendant did not enter into an arbitration agreement after plaintiff became the state's proxy or agent authorized to pursue the PAGA claims. Thus, we conclude that federal preemption does not compel arbitration in this case because there is no private arbitration agreement applicable to the PAGA claims and, therefore, those claims "fall outside the FAA's coverage." (Herrera, supra, 67 Cal.App.5th at p. 550.)
In Winns v. Postmates Inc. (2021) 66 Cal.App.5th 803, the court stated: "In May 2021, a petition for certiorari was filed [with the United States Supreme Court] in Viking River Cruises, Inc. v. Moriana (No. 20-1573), asking the high court to decide '[w]hether the [FAA] requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under PAGA.'" (Winns, at p. 815, fn. 4.) On the day of oral argument in the instant appeal, the high court granted the petition for writ of certiorari. (Viking River Cruises, Inc. v. Moriana (Dec. 15, 2021, No. 20-1573) __U.S.__ .) The grant of certiorari, in itself, does not undermine our conclusion that preemption under the FAA does not apply because the PAGA claims fall outside the FAA's coverage.
III. THE CBA AND FEDERAL LABOR LAW DO NOT COMPEL ARBITRATION
Defendant contends section 301 of the Labor Management Relations Act of 1947 (LMRA; 29 U.S.C. § 185) preempts the PAGA claims which assert a Labor Code violation allegedly suffered by a CBA-covered employee and involving the interpretation or application of any of the CBA's provisions. Defendant asserts the superior court failed to address the CBA or section 301 of the LMRA and failed to enforce the collectively bargained obligation to grieve and arbitrate certain disputes under article 9 of the CBA.
Plaintiff contends the PAGA claims do not qualify as "grievances" covered by the CBA's arbitration agreement because the claims do not involve "a dispute as to the interpretation, meaning or application of a specific provision of this [CBA]." Plaintiff also cites the principle that statutory claims are not subject to mandatory arbitration under a CBA unless the arbitration provisions contain a clear and unmistakable waiver of the employee's right to a judicial forum as to the statutory claims. (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 79-80 (Wright).) Plaintiff contends the CBA, which refers to grievances, does not include a clear and unmistakable waiver of statutory claims, such as those based on Labor Code violations.
A. Interpretation of CBA
1. Applicable Legal Principles
The California Supreme Court has discussed the United States Supreme Court opinions concluding the jurisdictional grant in section 301 of LMRA required the complete preemption of state law claims brought to enforce collective bargaining agreements. (Melendez v. San Francisco Baseball Associates LLC (2019) 7 Cal.5th 1, 7 (Melendez).) The California Supreme Court recognized the main policies underlying this preemption rule were (1) ensuring nationwide uniformity in the interpretation of collective bargaining agreements and (2) preserving arbitration as the primary means of resolving disputes over the meaning of collective bargaining agreements. (Id. at p. 8.) However, preemption does not necessarily apply to all claims that refer to the language in a collective bargaining agreement. (Ibid.) To preserve state authority in setting minimum labor standards, claims that require the interpretation of an agreement are distinguished from" 'those that require a court simply to "look at" the agreement.'" (Ibid.)
"Preemption occurs when a claim cannot be resolved on the merits without choosing among competing interpretations of a collective bargaining agreement and its application to the claim." (Melendez, supra, 7 Cal.5th at p. 9.) In such a situation," 'resolution of the state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.'" (Ibid.) In contrast, preemption does not arise (1) when the court looks at the agreement merely to discern that none of its terms is reasonably in dispute or (2) when the interpretation of the agreement is required only by a defense. (Id. at pp. 8-9.)
2. CBA Provisions Do Not Require Interpretation
First, section 4.a of article 11 of the CBA states: "The Facility will comply with the applicable Industrial Welfare Commission Wage Order regarding meal periods, meal period waivers, missed meal period penalties, and 'on duty' meal period agreements."Plaintiff contends this provision simply states that defendant will follow applicable state law for meal periods and does not involve an active dispute about the meaning of the contractual language. We agree. Defendant's argument that plaintiff "and her Union could and should have filed a grievance to obtain [sic] resolve the question of contractual interpretation whether [defendant's] compliance with Article 11(4)(a) simultaneously violates Article 11(4)(a)'s obligation to comply with other aspects of the Wage Order" is unconvincing because the purported conflict arises out of the terms of the wage order and not the wording of the CBA. Because the meaning of the words in the CBA is not in dispute, LMRA preemption does not apply to the claim related to meal periods.
This provision makes explicit what would otherwise be implied by law. California contract law provides that "[a]ll applicable laws and ordinances in existence when the agreement is made become a part thereof as fully as if incorporated by reference." (1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 775, p. 832 [applicable laws become part of contract].)
Second, section 5.d of article 13 of the CBA states: "The Facility will comply with its obligations under state law regarding paycheck stubs." Again, this provision refers to state law and the only way to determine if a violation occurred is to interpret state law, not choose between conflicting interpretations of language in the CBA. Therefore, LMRA preemption does not apply to the paycheck-stub claim.
Third, the CBA does not specifically address seating. The health and safety provision in section A of article 17 of the CBA states: "The Facility has the obligation to provide a safe and healthy environment for Employees and patients. The Facility shall comply with all applicable federal and California laws and regulations pertaining to occupational and general safety and health standards." This provision also refers to state law and whether plaintiff can establish her claim will not depend upon choosing between competing interpretations of the quoted CBA language. Instead, the claim depends on whether defendant violated section 14(A) of "Industrial Welfare Commission Order 201001," which provides: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Therefore, LMRA preemption does not apply to the seating claim.
B. Clear and Unmistakable Waiver
In addition, we address whether the CBA contains a clear and unmistakable waiver of the right to a judicial forum for the Labor Code violations alleged. (See Wright, supra, 525 U.S. 70, 79-80 [clear and unmistakable waiver requirement].) Our analysis is short because defendant's appellate briefing has not addressed this issue, which is significant because it was raised below in plaintiff's opposition to the petition to compel arbitration and again in her respondent's brief.
The waiver principle established in Wright was applied by the Second District in Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (Vasquez) to the employees' statutory causes of action under California's antidiscrimination statute. (Id. at pp. 432- 434.) The collective bargaining agreement in Vasquez provided that" 'all grievances or disputes … over the interpretation or application of the terms of this Agreement'" shall be settled by the grievance and arbitration procedure set forth in the collective bargaining agreement. (Id. at p. 433.) The Second District concluded "the [collective bargaining agreement] in this case does not contain a clear and unmistakable waiver of the covered employees' rights to a judicial forum for statutory claims of employment discrimination." (Id. at p. 436.) As a result, the Second District directed the superior court to vacate its order granting the employer's motion to compel arbitration and to enter a new order denying the motion. (Id. at p. 437.)
The waiver principle established in Wright has not been limited to statutory claims involving a violation of antidiscrimination laws. In Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) 8 Cal.App.5th 236 (Vasserman), the plaintiff sued her former employer for violations of the Labor Code relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation. (Vasserman, at p. 239.) The employer filed a motion to compel arbitration. (Id. at p. 242.) The trial court denied the motion. (Id. at p. 243.) The appellate court affirmed, concluding that the collective bargaining agreement did not contain a clear and unmistakable waiver of the right to a judicial forum for the statutory Labor Code claims. (Vasserman, at pp. 246, 250.)
Less than three years earlier, a federal district court determined "the grievance and arbitration procedure does not constitute a 'clear and unmistakable' waiver of Vasserman's right to pursue [Labor Code] claims in a judicial forum, and does not provide a sufficient basis upon which to conclude that her claims are preempted." (Vasserman v. Henry Mayo Newhall Memorial Hospital (C.D.Cal. 2014) 65 F.Supp.3d 932, 965.) As a result, the court concluded "Vasserman has alleged claims that arise under state law, rather than the CBAs that governed her employment and that of putative class members, and that resolution of her claims will not substantially depend on interpretation of those agreements." (Id. at p. 966.) Accordingly, the court determined it lacked federal question jurisdiction and granted Vasserman's motion to remand the case to state court. (Id. at pp. 966, 985.)
The collective bargaining agreement in Vasserman stated arbitration was applicable to" 'any complaint or dispute arising out of the interpretation or application of ... this [CBA].'" (Vasserman, supra, 8 Cal.App.5th at p. 247.) The arbitration provision in Vasserman made no mention of the Labor Code or any other statute, it did not discuss individual statutory rights, and it did not mention waiver of a judicial forum. Although other collective bargaining agreement provisions discussed issues such as overtime compensation and meal and rest periods, the court concluded the collective bargaining agreement's discussion of those topics and its inclusion of some general provisions on those topics did not amount to a clear and unmistakable waiver of a judicial forum for the Labor Code claims. (Vasserman, at pp. 248-250; see Wilson-Davis v. SSP America, Inc. (2021) 62 Cal.App.5th 1080, 1094 [no clear and unmistakable waiver of plaintiff's right to litigate his statutory wage and hour claims in a judicial forum].)
Here, the CBA's definition of a grievance is similar to the collective bargaining agreements in Vasquez and Vasserman. Accordingly, we reach the same determination and conclude the CBA does not contain a clear and unmistakable waiver of the right to pursue the alleged violations of the Labor Code in a judicial forum.IV. ESTOPPEL
The existence of a clear and unmistakable waiver was not addressed in defendant's appellate briefs. During oral argument, counsel for defendant addressed the wavier requirement. Ordinarily, "[w]e do not consider arguments that are raised for the first time at oral argument" (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1554, fn. 9) and such arguments are deemed forfeited because they are not raised it in a timely manner (In re I.C. (2018) 4 Cal.5th 869, 888, fn. 5). Because the entire CBA is part of the appellate record and determining its meaning presents a question of law, we do not avoid the waiver issue on the ground it was forfeited.
Defendant's reply brief asserts plaintiff voluntarily initiated arbitration of her seating disputes in April 2021 (while this appeal was pending), which constitutes an enforceable postdispute agreement to arbitrate. Defendant also contends plaintiff's conduct should estop her from arguing against the enforcement of her now ratified arbitration obligation.
Generally, points raised for the first time in a reply brief are not considered by appellate courts. (Herrera, supra, 67 Cal.App.5th at p. 548; see Panopulos v. Maderis (1956) 47 Cal.2d 337, 340-341 [new theories raised on appeal].) Abiding by this rule is particularly appropriate where (1) the new argument involves evidence not before the superior court, (2) neither party has requested this court take judicial notice of the supporting evidence-that is, the complaint plaintiff submitted to the American Arbitration Association, and (3) the issue presented cannot be resolved without the appellate court acting as a trier of facts. (See Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305 [existence of estoppel generally is a question of fact; it is a question of law only when the evidence is not in conflict and is susceptible of only one reasonable inference].) Such is the case here and, therefore, we will not consider defendant's new argument and plaintiff's responses, such as her assertion that there is no overlap between the two proceedings because the court action pursues only PAGA claims for Labor Code violations and the arbitration complaint alleges only violations of the Fair Employment and Housing Act.
The complaint for damages asserts causes of action for violations of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) based on (1) sex discrimination, (2) disability discrimination, (3) failure to accommodate, (4) failure to engage in the interactive process, (5) retaliation, and (6) failure to prevent discrimination and retaliation. The complaint was attached to a declaration filed by plaintiff's counsel as part of a response to the court's own motion to take judicial notice of certain documents filed in Herrera.
Because we have not addressed and resolved defendant's waiver argument, it is not necessary for us to consider whether the resolution of the PAGA action in a judicial forum should be stayed while plaintiff's claims for violations of the California Fair Employment and Housing Act proceed in arbitration. V. SANCTIONS
Sanctions can be imposed by appellate courts pursuant to statute or the California Rules of Court. (See Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160-1162 (Huschke).) Code of Civil Procedure section 907 states: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (Italics added.) In addition, California Rules of Court, rule 8.276, states:
Subsequent references to a numbered "Rule" are to the California Rules of Court.
"(a) Grounds for sanctions On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not reasonably material to the appeal's determination; [¶] (3) Filing a frivolous motion; or [¶] (4) Committing any other unreasonable violation of these rules." (Italics added.)
These provisions contain both an objective and subjective standard. Under the objective standard, an appeal is frivolous "only when it indisputably has no merit-[that is, ] when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) Under the subjective standard, an appeal is frivolous "only when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment." (Ibid.)
Courts must apply these standards in a manner that avoids "a serious chilling effect on the assertion of litigants' rights on appeal." (Flaherty, supra, 31 Cal.3d at p. 650.) Thus, appellants "have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal." (Ibid.) Like the Supreme Court, we recognize the borderline between a frivolous appeal and one that simply has no merit is vague and, as a result, punishment should be used sparingly to deter only the most egregious conduct. (Id. at pp. 650-651.)
In July 2021, plaintiff filed a motion for sanctions on the grounds that defendant's appeal was frivolous and was taken solely for delay.
Applying the objective standard, we conclude it was unlikely that defendant would win on appeal but, at the time it was filed, it was not totally and completely without merit. As described below, it does not qualify as frivolous under the objective standard.
Defendant's opening brief cited federal cases addressing the arbitrability of PAGA claims. In Sakkab v. Luxottica Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, the court stated: "The California Supreme Court's decision in Iskanian expresses no preference regarding whether individual PAGA claims are litigated or arbitrated. It provides only that representative PAGA claims may not be waived outright. [Citation.] The Iskanian rule does not prohibit the arbitration of any type of claim." (Id. at p. 434.) In Sakkab, the arbitration provision was contained in an employee guidebook plaintiff signed in June 2010 and the lawsuit was not filed until January 2012. (Id. at p. 428.) Thus, Sakkab involved a predispute arbitration agreement. The court concluded the agreement's waiver of the employee's PAGA representative claims could not be enforced and left open the question of whether the parties had agreed to arbitrate those claims. (Sakkab, at p. 440.) The court remanded for the district court to decide in the first instance whether the PAGA representative claims should be resolved in court or in arbitration. (Ibid.) Thus, it is possible to interpret Sakkab as allowing arbitration of PAGA claims under a predispute arbitration agreement. Furthermore, defendant's opening brief cited federal district court cases that compelled arbitration of PAGA claims. (E.g., Cabrera v. CVS Rx Services, Inc. (N.D.Cal. Mar. 16, 2018, No. C 17-05803 WHA) 2020 U.S. Dist. LEXIS 43681 [court compelled arbitration of certain PAGA claims and not others].) Based on the federal cases and the United States Supreme Court's recent grant of certiorari, we conclude that defendant's arguments about the arbitrability of the PAGA representative claims were not totally and completely without merit.
Next, under the subjective standard, we find defendant's appeal was not frivolous because it was not pursued solely for an improper motive-that is, to either harass plaintiff or delay the effect of the order denying the request to compel arbitration. (Flaherty, supra, 31 Cal.3d at p. 650; see Code Civ. Proc., § 907.) Based on the record before us, we infer the appeal was motivated at least in part by defendant's desire to take a long shot at trying to convince this court not to follow its decision in Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 and the many decisions from other districts that are cited in footnote 2 of Herrera, supra, 67 Cal.App.5th at page 549.
Lastly, we consider the issue raised in our August 26, 2021 order, which stated "the court is considering imposing sanctions on appellant's counsel for committing an unreasonable violation of the rules. (Rule 8.276(a)(4).) Specifically, Rule 8.100(g)(1) requires appellant to file a completed civil case information statement. Item 2 of Part II of the appellant's civil case information statement is incomplete and inaccurate because Code of Civil Procedure section 1291.2 makes calendar preference mandatory. (See Bus. & Prof. Code, § 6068, subd. (d); Cal. Rules Prof. Conduct, rule 3.3, subd. (a)(1) [duty of candor].)"
Rule 8.100(g)(1) states: "Within 15 days after the superior court clerk sends the notification of the filing of the notice of appeal required by (e)(1), the appellant must serve and file in the reviewing court a completed Civil Case Information Statement (form APP-004), attaching a copy of the judgment or appealed order that shows the date it was entered." (Italics added.) Part II of Judicial Counsel form APP-004 includes two items- the first addresses the nature of the action and the second includes a box followed by "This appeal is entitled to calendar preference/priority on appeal (cite authority)." Defendant's attorneys did not mark the box and left the remainder of this item blank. The proper way to complete the item would have been to mark the box and cite Code of Civil Procedure section 1291.2, which makes calendar preference mandatory in this appeal.
We find defendant's attorneys were aware of mandatory calendar preference under Code of Civil Procedure section 1291.2 because the civil information statement they filed in Herrera on April 8, 2020, marked the box of the item about calendar preference and stated: "Ordered by this Court on April 3, 2020." That order granted calendar preference based on the respondent's motion, which referred to the preference required by Code of Civil Procedure section 1291.2. Based on their experience in Herrera, defendant's attorneys were aware that calendar preference was mandatory and, nonetheless, chose to leave the item in the civil information statement blank. We note appellant's argument that the form and its instructions do not explain what an appellant must do to complete the item addressing calendar preference and, without instructions or an explanation, it is unclear what appellants are required to do. We find this argument unconvincing because the concept of completeness is not particularly complex in this situation. If an "appeal is entitled to calendar preference/priority," then the appellant completes the form by marking the box and citing the authority that grants calendar preference. When this is not done, the form is not complete.
Based on the foregoing, we find defendant's attorneys violated the mandatory requirement in Rule 8.100(g)(1) that they "serve and file in the reviewing court a completed Civil Case Information Statement (form APP-004)." (Italics added.) We further find that the violation was unreasonable for purposes of Rule 8.276(a)(4) because defendant's attorneys were aware of the statute mandating calendar preference in this appeal.
Sanctions usually are made payable to respondent but also can be made payable to the clerk of the appellate court. (Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 11:133, p. 11-60; see Huschke, supra, 168 Cal.App.4th at p. 1162 [no doubt sanctions may be made payable to the court].) The rationale for requiring payment to the court is to reimburse the taxpayers for the costs incurred by the court as a result of the failure to comply with applicable rule. (Huschke, at p. 1163 [$6,000 in sanctions imposed for violating Rule 8.244].) In this case, we find that that expense of the time expended by the clerks, judicial attorney, judicial assistant, and justices due to the failure to accurately complete the form APP-004 was at least $500. Accordingly, defendant's attorneys are directed to personally pay that amount to the clerk of this court.
DISPOSITION
The order denying the petition to compel arbitration judgment is affirmed. Plaintiff shall recover her costs on appeal.
Defendant's attorneys are directed to personally pay $500 in sanctions to the Clerk of the Fifth Appellate District of the Court of Appeal no later than 14 days after the issuance of remittitur in this appeal.
[*] Before Franson, Acting P. J., Peña, J. and Snauffer, J.