Judge Laura A. Seigle, Case 20STCV32519 2022-12-13 Tentative Ruling

On August 26, 2020, Plaintiff Fabiola Yani (“Plaintiff”) filed this action against Defendants Burlington Coat Factory Direct Corporation and Laura Charles (collectively, “Defendants”), alleging (1) discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) unlawful retaliation under Labor Code section 1102.5; (5) wrongful discharge in violation of public policy; and (6) failure to provide employee records.

On February 18, 2021, the Court granted Defendants’ motion to compel arbitration.

On November 2, 2022, Plaintiff filed a motion for an order (1) to vacate orders by arbitrator Robert D. Vogel (“Arbitrator Vogel”) for Plaintiff to sign two subpoenas pertaining to third parties California In-Home Support Services (“IHSS”) and EDD; (2) of mandatory recusal of Arbitrator Vogel in the current arbitration proceedings; and (3) finding that Ms. Charles is a party to the current arbitration proceedings.

The parties agree that the Federal Arbitration Act (“FAA”) applies to this arbitration. (See, e.g., Feb. 18, 2021 Order at p. 2; Motion at p. 10; Opposition at pp. 4-5.)

Under the FAA, the Court may vacate an arbitration award only (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. (9 U.S.C. § 10(a).)

“The arbitrator’s award must normally be final and binding before such review is undertaken. [Citation.] Only in the most extreme cases will judicial review of a nonfinal award be proper. [Citation.] To allow judicial intervention prior to the final award would contravene the fundamental federal labor policy of deference to contractual dispute resolution procedures, and would interfere with the purpose of arbitration: the speedy resolution of grievances without the time and expense of court proceedings.” (Millmen Local 550, United Broth. of Carpenters and Joiners of America, AFL-CIO v. Wells Exterior Trim (9th Cir. 1987) 828 F.2d 1373, 1375, footnote omitted.)

Plaintiff argues that partial or interim awards may be enforceable in this action even while the arbitration remains pending. (Reply at p. 2.) “[A]n interim award may be deemed final for functus officio purposes if the award states it is final, and if the arbitrator intended the award to be final.” (Bosack v. Soward (9th Cir. 2009) 586 F.3d 1096, 1103 (Bosack).) This may be demonstrated by language in the order instructing the parties to seek further relief in court, or if only minor adjustments or clarification of the award remain. (Legion Ins. Co. v. VCW, Inc. (8th Cir. 1999) 198 F.3d 718, 720 [functus officio criteria adopted and cited by the Ninth Circuit in Bosack].) However, as discussed below, none of the orders for which Plaintiff seeks intervention are interim awards—they are procedural orders and decisions issued during the pendency of the arbitration proceedings.

In January 2022, Respondents in the arbitration issued a deposition subpoena for production of business records to California IHSS. (Villarreal Decl., Ex. F.) Arbitrator Vogel issued Discovery Order No. 5 on August 19, 2022, ordering Plaintiff to immediately execute appropriate authorizations consenting to the release of documents. (Villarreal Decl., Ex. G.)

Plaintiff argues that third-party subpoenas are not authorized under the FAA or the California Arbitration Act (“CAA”). (Motion at pp. 10-13.) However, there is no final and binding arbitration award yet for this Court to review. This is a procedural order governing discovery and does not finally decide the issues between the parties. If Arbitrator Vogel engaged in misconduct or exceeded his powers, that may be grounds for this Court to vacate a final award later. (9 U.S.C. § 10(a).) But there is no authority for this Court to interfere with and vacate discovery orders now.

Plaintiff argues that Arbitrator Vogel is the only principal in Jackson Lewis P.C.’ Utah and Los Angeles offices who handles both traditional labor law and employment litigation, and Defendants’ counsel in this action is also from Jackson Lewis. (Motion at pp. 16-17.) Citing both AAA’s rules and the California Rules of Court, Plaintiff argues that Arbitrator Vogel must be subject to mandatory recusal. (Id. at pp. 17-18.) Defendants argue that Plaintiff has waived any objections to Arbitrator Vogel because she has been on notice about his affiliation with Jackson Lewis since April 2021, she never objected during the selection process, and she never moved to disqualify him. (Opposition at pp. 7-9.)

On October 10, 2022, AAA issued a determination stating that Arbitrator Vogel would be reaffirmed as an arbitrator. (Villarreal Decl., Ex. L.) The arbitration remains ongoing, and there is no final arbitration award yet for this Court to vacate. It is very unusual for the arbitrator to be from the same firm as one party’s counsel, and any potential future challenge to a final award will be given careful consideration. But the Court makes no findings on the merits now at this premature procedural stage.

Plaintiff argues that Ms. Charles joined the motion to compel arbitration, but now she is avoiding arbitration. (Motion at pp. 9-10.)

Plaintiff’s March 9, 2021 demand for arbitration identified only “Burlington Coat Factory Direct Corporation” as the Respondent. (Villarreal Decl., Ex. E.) On October 4, 2022, Arbitrator Vogel issued an order addressing whether Ms. Charles is a party to the arbitration. (Villarreal Decl., Ex. H.) He concluded that Plaintiff did not meet her burden of showing that Ms. Charles was a party, and he set forth three options for Plaintiff if she wished to assert claims against Ms. Charles. On October 12, 2022, Plaintiff filed an amended demand for arbitration, naming Burlington Coat Factory Direct Corporation and Laura Charles as Respondents. (Villarreal Decl., Ex. I.)

There is no final order for this Court to vacate or amend, and Plaintiff’s request that this Court issue an order stating that Ms. Charles is a party to the current arbitration proceedings was not one of the options that Arbitrator Vogel presented to Plaintiff.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court