Opinion
A150039
12-11-2017
ROSS STORES, INC., Petitioner, v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; RACHEL GOSS, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG-11577328)
INTRODUCTION
We last considered this case in an appeal by Ross Stores, Inc. from an order denying its petition to compel arbitration. We reversed in an unpublished opinion (Goss v. Ross Stores (Oct. 31, 2013, A133895) [nonpub. opn.]). In our opinion, we acknowledged the courts of appeal were split on the compelled arbitrability of representative claims under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA) and that the issue was before our Supreme Court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian). In Iskanian, the Supreme Court concluded an employee cannot be compelled to arbitrate a representative PAGA claim. (Id. at p. 360.) In short, the Supreme Court embraced the view we had declined to adopt in our unpublished opinion.
After the Supreme Court issued its opinion in Iskanian, the parties and trial court, at a case management conference, addressed the impact of the decision on the arbitration of Goss's PAGA claim, and the court invited Ross to file a motion to put the issue before the court. Ross did so through a pleading entitled, "Request For Order Directing Matter to Individual Arbitration Pursuant to the Decision of the California Court of Appeals [sic]." The thrust of Ross's request was that our prior opinion was law of the case, regardless of the Supreme Court's subsequent and contrary ruling in Iskanian. The trial court concluded an exception to the law of the case doctrine—the intervening-change-in-the-law exception—applied and followed the Supreme Court's decision in Iskanian. The court therefore declined to order Goss's PAGA claim to arbitration. We uphold the trial court's order.
Rachel Goss's individual claims, including for injunctive relief under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) (UCL), have apparently been ordered to arbitration, but stayed pending trial on her representational PAGA claim. The procedural status of her non-PAGA claims is not at issue in this appeal.
We harbor some doubt as to whether the challenged order by the trial court is appealable. While Ross characterizes the order as denying a motion to compel arbitration appealable under Code of Civil Procedure section 1294, subdivision (a), that is a stretch. To insure prompt resolution of this threshold arbitrability issue, however, we treat Ross's appeal as a petition for a writ of mandate. (See Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982 ["A failure to follow appellate directions can be challenged by an immediate petition for writ of prohibition or writ of mandate."].)
DISCUSSION
Ross continues to maintain, as it did in the trial court, that under the law of the case doctrine, the trial court was required to follow our now rejected view as to the arbitrability of a PAGA claim.
Jurisdiction on Remand
After doing our own research, we asked the parties to submit letter briefs addressing whether the issue before us actually concerns the scope of the trial court's jurisdiction on remand, rather than the applicability of the law of the case doctrine, directing the parties' attention to People v. Dutra (2006) 145 Cal.App.4th 1359, 1361-1370, and Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859-864 (Ayyad).
Briefly, when a Court of Appeal reverses and remands with specific directions, the trial court's jurisdiction is limited to acting in accordance with those directions. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 ["The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned."]; Ayyad, supra, 210 Cal.App.4th at pp. 859-860 ["The issues the trial court may address in the remand proceedings are therefore limited to those specified in the reviewing court's directions, and if the reviewing court does not direct the trial court to take a particular action or make a particular determination, the trial court is not authorized to do so."].) Indeed, "[t]he trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void." (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655.)
However, as Goss points out, while we reversed the order denying arbitration, our disposition was an unqualified reversal and did not direct the trial court to take any specific action on remand. "As a general rule, an unqualified reversal vacates the appealed judgment or order. As a result, the case is placed in the same procedural posture as if the judgment or order had never been entered, and all issues involved in the case must be readjudicated anew." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017), ¶ 11:65, p. 11-22.)
Ross contends we effectively reversed with directions because reversal of an order denying arbitration implicitly means that on remand the case must be sent to arbitration. We decline to adopt this reasoning since it was apparent at the time we decided the prior appeal that the Supreme Court was going to decide the PAGA issue and that it could well do so before the trial court took any further action following issuance of the remittitur in this case. (See Bank of America v. Superior Court (1990) 220 Cal.App.3d 613, 623 [discussing limited exception to requirement that appellate court's directions must be explicit to limit trial court's jurisdiction on remand and observing "[p]erhaps one of the reasons judges do not often invoke the exception is that it depends on textual analysis of a prior opinion that may not even consciously, let alone unambiguously, address the subject of the present inquiry, and therefore cannot often be employed with confidence"].)
We thus conclude, treating our prior reversal as the unqualified disposition that it is, that the trial court was not limited on remand to sending Goss's PAGA claim to arbitration.
Law of the Case Doctrine
We therefore turn to Ross's assertion that the law of the case doctrine required the trial court to disregard the Supreme Court's opinion in Iskanian and abide by our repudiated prior unpublished opinion.
The parameters of the law of the case doctrine have been established for decades. "Under the doctrine of the law of the case, a principle or rule that a reviewing court states in an opinion and that is necessary to the reviewing court's decision must be applied throughout all later proceedings in the same case, both in the trial court and on a later appeal." (People v. Jurado (2006) 38 Cal.4th 72, 94 (Jurado).)
It has also been established for decades that the law of the case doctrine is not applied "when an intervening decision has altered or clarified the controlling rules of law, or when the rule stated in the prior decision was a ' "manifest misapplication" of the law resulting in "substantial injustice." ' " (Jurado, supra, 38 Cal.4th at p. 94; People v. Iraheta (2017) 14 Cal.App.5th 1228, 1242 [where Supreme Court clarified law on gang expert testimony, law of the case doctrine did not apply and the Court of Appeal was required to revisit issue in second appeal].) In fact, the intervening-change-in-the-law exception has been applied in a post-Iskanian arbitration case, Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 953-956 (Franco).
In Franco, the Court of Appeal initially reversed an order compelling arbitration on the ground the arbitration agreement was unenforceable as to all of the plaintiff's claims—individual, class and PAGA claims. (Franco, supra, 234 Cal.App.4th at pp. 952-954.) Subsequently, a newly named defendant filed a second petition to compel arbitration, which the trial court denied, in part on law of the case grounds. (Id. at pp. 954-955.) In a second appeal, the Court of Appeal again affirmed the denial of arbitration. (Id. at p. 955.) The Supreme Court granted review and held the case pending its decision in Iskanian. (Franco, at p. 955.) Following issuance of its decision, the Supreme Court transferred Franco back to the Court of Appeal with directions to vacate and reconsider the case. (Ibid.) The appellate court commenced its analysis with a discussion of the law of the case doctrine, observing that generally an appellate court will not, in a subsequent appeal, revisit legal issues decided in a prior appeal. (Id. at p. 957.) However, that doctrine "cannot be applied" in the instant appeal, said the court, "because the doctrine is not applied where it would lead to unjust results—notably in this case, where there has been an intervening change in the law on which the earlier decision is based." (Ibid.) Accordingly, the Court of Appeal departed from its prior analysis and denied arbitration only as to the plaintiff's PAGA claim and ruled the individual and class claims were subject to arbitration. (Id. at pp. 956-957, 961-963, 965-966.)
Ross's assertion that only an appellate court in a "second" appeal (such as occurred in Franco), can decline to apply the law of the case doctrine in light of an intervening change in the controlling law, defies common sense. The law of the case doctrine is operative in both trial courts and appellate courts. Ross has not cited, nor are we aware of, any case that suggests a trial court cannot heed an intervening decision by our Supreme Court, but rather, in the name of the law of the case doctrine, must infect the case with reversible error, which can only be rectified by the Court of Appeal in the inevitable next appeal or writ proceeding.
As Ross points out, the law of the case doctrine applies even when an appellate court may initially have been in error. (See People v. Romero (2012) 204 Cal.App.4th 704, 719 [appellate pronouncement on a legal principle " ' "becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular," ' " quoting Kowis v. Howard (1992) 3 Cal.4th 888, 892-993].) But this is an aspect of the basic law of the case doctrine, and it does not thereby consume the long recognized exception that the doctrine does not apply where there is an intervening clarification of or change in the law. (See Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491-492 (Morohoshi) [while the law of the case doctrine may preclude even the high court from re-examining a prior court of appeal that "was erroneous," the court has declined to apply the doctrine "where there has been a manifest misapplication of existing principles resulting in substantial injustice, or where the controlling rules of law have been altered or clarified" by an intervening decision].)
A Court of Appeal can initially be in error for any number of reasons, e.g., it was in error as to the facts or as to the then established law. Furthermore, it is debatable whether an appellate ruling can be characterized as being initially in error, when it only becomes erroneous in the wake of subsequent clarification by a higher authority or a change in the law. In any case, even assuming a Court of Appeal can be said to have been in error initially when there is a later clarification of or change in the law, that particular kind of error, for significant policy reasons, will not be allowed to taint the remainder of the proceedings under the rubric of the law of the case doctrine.
Morohoshi, which Ross cites, certainly does not suggest trial courts are bound to perpetuate such error following clarification of or a change in the law. On the contrary, in that case, the Supreme Court concluded the Court of Appeal had misapplied the law of the case doctrine because it did not, in its first decision, decide the issue raised in the second appeal. (Morohoshi, supra, 34 Cal.4th 482 at pp. 492-493.) Accordingly, the law of the case doctrine was "itself inapplicable" and the high court therefore did "not address the applicability of exceptions to it." (Id. at p. 492.) Nor does People v. Stanley (1995) 10 Cal.4th 764, 786, which Ross also cites. In that case, the Supreme Court declined to revisit suppression issues that had been decided by the Court of Appeal in a prior writ proceeding. The high court concluded that neither the manifest-misapplication-of-existing-legal-principles nor the intervening-change-in-the-law exceptions applied. (Id. at pp. 788-789.)
In short, the trial court correctly concluded the law of the case doctrine did not require it to ignore the Supreme Court's decision in Iskanian and follow our prior opinion.
CONCLUSION
Having treated Ross's purported appeal from the order declining its request for an order requiring arbitration of Goss's PAGA claim as a petition for a peremptory writ of mandate, we deny the petition. Costs to real party in interest Goss.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.