Mendez v. Mid-Wilshire Health Care Ctr.

 

 

 

 

 

 

 

 

Filed 9/23/13 
Mendez v. Mid-Wilshire Health Care Ctr. CA2/7

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SEVEN

 

 
>

MARIBEL MENDEZ,               Plaintiff and Respondent,               v.   MID-WILSHIRE HEALTH CARE CENTER,               Defendant and Appellant.

B243144         (Los Angeles County       Super. Ct. No. BC449964)

 

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Alan S. Rosenfield, Judge. 
Affirmed.

            Beach ×€ Whitman ×€ Cowdrey; Beach ×€ Cowdrey ×€ Owen, Thomas E.
Beach, Sean D. Cowdrey and Darryl C. Hottinger for Defendant and Appellant.

            Law Offices
of Ramin R. Younessi, Ramin R. Younessi and Kaveh S. Elihu for Plaintiff and
Respondent.

 

_____________________

>

INTRODUCTION

 

            Defendant
Mid-Wilshire Health
Care Center
(Mid-Wilshire) appeals from an order denying its href="http://www.mcmillanlaw.com/">motion to compel arbitration and to stay
this wrongful termination action filed by plaintiff Maribel Mendez.  We hold that the arbitration provision in the
collective bargaining agreement
governing Mendez’s employment does not apply to Mendez’s statutory
discrimination claims, and affirm.

 

FACTUAL AND> PROCEDURAL BACKGROUND

 

            Mid-Wilshire
hired Mendez as a nurse’s assistant in January 1985, when she was 42 years
old.  Mendez worked at Mid-Wilshire’s
skilled nursing facility in Los Angeles.  She was a union member and served on the
union bargaining committee.

            In February
2009 Mendez, then 66 years old, experienced vaginal bleeding.  She sought medical care from a gynecologist
who provided her with a note stating she could return to work on March 2, 2009.  On that date, Mendez gave the note to Betty
Aguilar, who Mendez alleged was Mid-Wilshire’s sole principal with the “ability
to hire, fire, discipline, demote and grant raises.”  Aguilar told Mendez to go home and said she
would call Mendez on March 4.  Aguilar
did not call Mendez on March 4, so on March 5 Mendez called Aguilar, who asked
to speak to Mendez in person.  Feeling
uncomfortable, Mendez called a union representative who advised Mendez not to
meet with Aguilar and stated he would arrange a meeting with Aguilar.

            On March 17, 2009 Mendez, the union
representative, and Aguilar met.  Aguilar
terminated Mendez’s employment.href="#_ftn1"
name="_ftnref1" title="">^>[1]  The union representative subsequently tried
unsuccessfully to get Mendez her job back.

            Mendez
filed this action on November 19,
2010 against Mid-Wilshire and Aguilar, alleging seven causes of
action.  Four were common law claims for
breach of the covenant of good faith and fair dealing, wrongful termination in
violation of public policy, intentional
infliction of emotional distress, and retaliation.  Three were statutory causes of action for
violations of the California Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12940 et seq.) based on disability discrimination, age discrimination,
and failure to provide reasonable accommodation.  Mendez subsequently dismissed Aguilar from
the case.  Mid-Wilshire filed a motion to
compel arbitration and stay the action, arguing that Mendez’s claims were
subject to the grievance and arbitration procedure set forth in the collective
bargaining agreement between Mid-Wilshire and the union.

            Article 19
of the collective bargaining agreement, entitled “GRIEVANCE AND
ARBITRATION,” provides:

“Section 1 –
General Principles

            “A.       The following procedure shall be applied
and relied upon by both parties as the sole and exclusive means of adjustment
of and settling grievances.

            “B.       Both parties agree that, prior to the
filing of any grievance, except for grievances protesting discharge or
suspension, an informal discussion may be held in an attempt to resolve the
dispute.

“Section 2 – Step
One

            “All
grievances, except those involving discharge and suspension shall be initiated
at Step One. . . .

“Section 3 – Step
Two

            “A.       In order for a grievance to be considered
further, an appeal shall be filed with the Administrator, at the facility,
within seven (7) calendar days after receipt of the Step One response.  In addition, grievances involving discharge
and suspension shall be introduced at this Step of the Grievance and
Arbitration Procedure.

            “B.       Within seven (7) calendar days after
receipt of the Step One appeal or newly initiated grievance, a meeting shall be
held with the Union Business Representative, and the Administrator or
designee.  Within five (5) calendar days
after such meeting, the Administrator or his/her designee, on behalf of the
Employer, shall respond, in writing, to the Union Business Representative.  If no answer is given the grievance will be
deemed to have been denied.

“Section 4 – Step
Three Mediation

            “After compliance
with Sections 2 and 3 above the Company and the Union may within five (5) days
arrange to meet with a representative of the Federal Mediation and Conciliation
Service (FMCS) or any other mutually-agreed upon source of a mediator, who
shall attempt to resolve the dispute and, if mediation is not successful, shall
render a non-binding advisory finding based on the facts of the case.

“Section 5 – Step
Four Arbitration

            “A.       In the event the grievance remains
unresolved, the grieving party may appeal the grievance to arbitration.  Written notice of such appeal must be made
within seven (7) calendar days after receipt of the Step Three response.  All such appeals shall be sent by certified
mail, and the date of mailing shall establish the timeliness of appeal.  [¶] . . .

            “C.       The arbitrator shall have no power to
alter, amend, change, add to or subtract from any of the terms of this
Agreement, but shall determine only whether or not there has been a violation
of the Agreement in respect to the alleged grievance and remedy.  The decision or award of the arbitrator shall
be based solely upon the evidence and arguments presented to him by the
respective parties in the presence of each other.  The decision or award of the arbitrator
within the limits herein prescribed shall be made in writing and shall be final
and binding upon the Employer, the Union, and the
employees affected.  Costs of the
arbitrator shall be shared equally by the Employer and the Union.”

            Mendez
opposed Mid-Wilshire’s motion to compel arbitration.  She argued that she was not a party to the
agreement and that the terms of the agreement did not encompass her FEHA
claims.

            At the
hearing on the motion, the trial court announced its tentative decision to deny
Mid-Wilshire’s motion to compel arbitration of Mendez’s FEHA claims based on
the leading California case in this area of the law, Vasquez v. Superior Court (2000) 80 Cal.App.4th 430 (>Vasquez).  The trial court also stated it intended to
grant the motion to compel arbitration of Mendez’s remaining claims, to stay
the arbitration, and to try the FEHA claims first.  Because neither party cited >Vasquez, the court continued the hearing
to allow the parties to submit additional briefing.

            In its
supplemental brief, Mid-Wilshire argued that the collective bargaining
agreement was specific enough to require arbitration of Mendez’s FEHA claims
and that Vasquez “is suspect and has
been implicitly overruled” by the United States Supreme Court in >AT&T Mobility LLC v. Concepcion
(2011) ___ U.S. ___ [131 S.Ct. 1740, 179 L.Ed.2d 742] (Concepcion).  Mid-Wilshire
argued that, in light of recent United States Supreme Court arbitration
decisions, Vasquez “is
. . . contrary to the [Federal Arbitration Act (FAA)]” and “is no
longer controlling law,” that the FAA applied to the employment agreements of
skilled nursing facilities, and that the trial court did not have the authority
to stay arbitration and try non-arbitrable claims first.  Mendez argued that the collective bargaining
agreement was not subject to the FAA and that Concepcion was not controlling. 
Relying on Vasquez, Mendez
argued that the collective bargaining agreement “is not sufficiently specific
to constitute a waiver of [her] right to a jury trial on her FEHA claims.”

            At the
continued hearing the trial court stated: 
“There is a considerable vagueness in Article 19 with regard to
arbitration of a grievance.  I don’t know
that grievance or a termination under circumstances that justify a statutory
cause of action under FEHA or otherwise are adequately defined as being
embraced within that arbitration process . . . .”  “Here, I don’t find that there is
sufficient certainty with regard to the subjects to be arbitrated.  And, accordingly, I’m denying the motion in
this case on the contract . . . to send this matter to
arbitration.”  The court also cited the
following language in subparagraph A of section 5 of Article 19:  “In the event the grievance remains
unresolved, the grieving party may appeal the grievance to arbitration.”  The court emphasized, “It doesn’t say
‘shall.’  It says ‘may.’  As far as I’m concerned, that doesn’t impose
a contractual mandate to pursue arbitration.” 
The trial court stated in its written order that it was denying
Mid-Wilshire’s motion to compel arbitration “on the grounds that the
arbitration provision within the Collective Bargaining Agreement is vague as to
whether arbitration is mandatory.”  The
trial court continued the trial, re-opened discovery, and scheduled a href="http://www.mcmillanlaw.com/">case management conference.  Mid-Wilshire filed this timely appeal.

 

DISCUSSION

 

            A.        Applicable
Law and Standard of Review

            “There is a
strong public policy in favor of arbitration. 
[Citations.]  [¶]  Under both the [FAA] [citation] and the
California Arbitration Act (CAA [citation]),
arbitration agreements are valid, irrevocable and enforceable except upon
grounds that exist for revocation of the contract generally.  [Citations.]”href="#_ftn2" name="_ftnref2" title="">>^[2]  (Serpa
v. California> Surety Investigations, Inc. (2013) 215
Cal.App.4th 695, 701-702, fn. omitted.) 
“‘[A]rbitration is a matter of contract and a party cannot be required
to submit to arbitration any dispute which he has not agreed so to
submit.’  [Citations.]”  (AT&T
Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643,
648 [106 S.Ct. 1415, 89 L.Ed.2d 648]; see Sparks
v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511,
1518 [“[b]ecause arbitration is a contractual matter, a party that has not
agreed to arbitrate a controversy cannot be compelled to do so”].)

            A trial
court must grant a petition to compel arbitration “if it determines that an
agreement to arbitrate the controversy exists.” 
(Code Civ. Proc., § 1281.2; see Avery
v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50,
59.)  There is, however, “no public
policy in favor of forcing arbitration of issues the parties have not agreed to
arbitrate.”  (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505.)  Thus, in ruling on a motion to compel
arbitration, the court must first determine whether the parties actually agreed
to arbitrate the dispute.  (>Avery, supra, at p. 59; Gorlach,
supra, at p. 1505.)  General principles of California
contract law guide the court in making this determination.  (Gorlach,
supra, at p. 1505; see >Sparks v. Vista Del Mar Child & Family
Services, supra, 207 Cal.App.4th
at p. 1518 [“the issue of whether the parties agreed to arbitration is
ordinarily decided under state law”]; Cheng-Canindin
v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 683 [“question
of whether the parties agreed to arbitrate is answered by applying state
contract law even when it is alleged that the agreement is covered by the
FAA”].)

            “Ordinarily,
we review a denial of a petition to compel arbitration for abuse of discretion.  [Citation.] 
However, where the trial court’s denial of a petition to arbitrate
presents a pure question of law, we review the order de novo.  [Citation.]” 
(Gorlach v. Sports Club Co., >supra, 209 Cal.App.4th at p. 1505; see >Flores v. Axxis Network &
Telecommunications, Inc. (2009) 173 Cal.App.4th 802, 805 [review of order
denying petition to compel arbitration is de novo].)

 

            B.        >Mendez Was Bound by a Collective Bargaining
Agreement

            Before we
reach the merits of Mid-Wilshire’s contentions, we address Mendez’s assertion
that the trial court’s decision must be affirmed, regardless of the language of
the collective bargaining agreement, because she was not a party to either of
the two collective bargaining agreements relied on by Mid-Wilshire.  The record does not support her assertion.

            One of the
collective bargaining agreements is between Mid-Wilshire and SEIU Local 434B
and states in Section A of Article 32: 
“This Agreement shall be effective as of January 1, 2006 and shall
remain in full force and effect through and including June 15, 2008, and
from year to year thereafter: provided, however that either party may serve
written notice on the other at least ninety (90) days prior to the contract
expiration date of its desire to cancel, amend or modify this Agreement.”  The other collective bargaining agreement is
between Mid-Wilshire and United Long-Term Care Workers’ Union Local 6434,
signed by Mid-Wilshire on June 25,
2009 and the Union trustee and bargaining committee members on July 15, 2009.  This contract covers the period March 15, 2009 through June 15, 2011.href="#_ftn3" name="_ftnref3" title="">>^[3]  The grievance and arbitration provisions in
both agreements are identical.

            Mendez
argues that neither collective bargaining agreement applies to her claims
because on March 17, 2009,
the date Mid-Wilshire terminated her, the first collective bargaining agreement
was no longer in effect and the second collective bargaining agreement was not
yet approved.  The first collective
bargaining agreement, however, states that it will remain in effect after June 15, 2008, “from year to year,”
unless terminated on 90 days notice by cancellation, amendment, or
modification.  There is nothing in the
record indicating that either side ever gave any such notice, or that the first
collective bargaining agreement was not in effect on March 17, 2009. 
Moreover, while it is true that Mid-Wilshire had already fired Mendez
when the second collective bargaining agreement was executed, the new agreement
applied retroactively to a date prior to Mendez’s termination.  Mendez does not argue that a collective
bargaining agreement cannot apply retroactively.

            Mendez also
emphasizes the absence of her signature on the line reserved for her, as a
member of the union bargaining committee, on the second collective bargaining
agreement.  The absence of Mendez’s
signature on the second collective bargaining agreement is
inconsequential.  Mendez does not deny
that she was a member of the union.  In
fact, she immediately called her union representative when Aguilar asked to meet
with her in person.  The union
representative scheduled a meeting with Aguilar, accompanied her to the
meeting, and tried to help Mendez get her job back.  Thus, as a member of the union, Mendez was
bound by the terms of the collective bargaining agreement.  (See Florio
v. City of Ontario (2005) 130 Cal.App.4th 1462, 1466 [“‘a member of a
bargaining unit is bound by the terms of a valid collective bargaining
agreement, though he is not formally a party to it and may not even belong to
the union which negotiated it’”].)

 

            C.        Arbitrability
of FEHA Claims

            Mid-Wilshire
contends that the trial court erred by determining that Mendez’s FEHA claims
are not arbitrable.  We agree with the
trial court that the arbitration agreement in the collective bargaining agreement
does not apply to Mendez’s FEHA claims.

            In >Wright v. Universal Maritime Service Corp.
(1998) 525 U.S. 70 [119 S.Ct. 391, 142 L.Ed.2d 361] (Wright) the Supreme Court held that the presumption that disputes
arising out of collective bargaining agreements are arbitrable does not apply
to statutory violations and that a requirement to arbitrate statutory claims in
a collective bargaining agreement must be “particularly clear.”  (Id.
at p. 79.)  The Supreme Court also held
that a waiver of an employee’s right to have employment discrimination claims
heard in a judicial forum must be “clear and unmistakable,” and that the court
will not infer from a general contractual arbitration provision an intent to
waive the statutorily protected right to a judicial forum unless the waiver is
“explicitly stated.”  (>Id. at p. 80; see also >Metropolitan Edison Co. v. NLRB (1983)
460 U.S. 693, 708 [103 S.Ct. 1467, 75 L.Ed.2d 387] [waiver by union of a
statutorily protected right must be explicit, clear, and unmistakable].)  More recently, in 14 Penn Plaza LLC v. Pyett (2009) 556 U.S.
247 [129 S.Ct. 1456, 173 L.Ed.2d 398] (14
Penn Plaza), the Supreme Court stated that “[t]his Court has required only
that an agreement to arbitrate statutory antidiscrimination claims be ‘explicitly
stated’ in the collective-bargaining agreement.”  (Id.
at p. 258, quoting Wright, >supra, at p. 80; accord, >Harris v. Bingham McCutchen LLP (2013)
214 Cal.App.4th 1399, 1408; see Wade v.
Ports America Management Corp. (2013) 218 Cal.App.4th 648, 654, fn. 2.)

            Vasquez followed >Wright.href="#_ftn4" name="_ftnref4" title="">>^>[4]  The Vasquez
court stated:  “Although ordinarily a
presumption of arbitrability applies to contractual disputes arising out of a
collective bargaining agreement, the presumption is not applicable to statutory
violations.  ([Wright], supra, 525 U.S.
at pp. 78-79 . . . .) 
Indeed a requirement to arbitrate statutory claims ‘must be particularly
clear.’  (Id. at p. 79 . . . .)  A union-negotiated waiver of employees’
statutory rights to a judicial forum for claims of employment discrimination
must be ‘“clear and unmistakable.”’  (>Id. at p.
80 . . . .) 
. . .  â€˜[T]he right to a . . . judicial
forum is of sufficient importance to be protected against less-than-explicit
union waiver in a [collective bargaining agreement].’  (Ibid.)”  (Vasquez,
supra, 80 Cal.App.4th at
p. 434.)  The Vasquez court further stated: 
“‘Broad, general language is not sufficient to meet the level of clarity
required to effect a waiver in a [collective bargaining agreement].  In the collective bargaining context, the
parties “must be particularly clear” about their intent to arbitrate statutory
discrimination claims.’  [Citation.]  A waiver in a collective bargaining agreement
is sufficiently clear if it is found in an explicit arbitration clause.  ‘Under this approach, the [collective
bargaining agreement] must contain a clear and unmistakable provision under
which the employees agree to submit to arbitration all [state and federal
statutory] causes of action arising out of their employment.’  [Citation.] 
A waiver in a collective bargaining agreement may also be sufficiently
clear if broad, nonspecific language in the arbitration clause is coupled with
‘an “explicit incorporation of statutory antidiscrimination requirements”
elsewhere in the contract.  [Citation.]  If another provision, like a href="http://www.fearnotlaw.com/">nondiscrimination clause, makes it
unmistakably clear that the discrimination statutes at issue are part of the
agreement, employees will be bound to arbitrate their [state and federal
statutory] claims.’  [Citation.]  A simple agreement not to engage in acts
violative of a particular statute will not suffice; the agreement must
establish the intent of the parties to incorporate ‘in their entirety’ the
discrimination statutes. 
[Citation.]”  (>Vasquez, supra, at p. 435, fns. omitted; see Peabody Holding Co., LLC v. United Mine Workers (4th Cir. 2012) 665
F.3d 96, 102 [“[t]he ‘clear and unmistakable’ standard is exacting”]; >Eastern Associated Coal Corp. v. Massey
(4th Cir. 2004) 373 F.3d 530, 534 [“[w]hile it is . . . possible to
meet the clear and unmistakable waiver standard of [Wright], it is not easy”].)

            Under >Wright, 14 Penn Plaza, and Vasquez,
the collective bargaining agreement in this case does not contain a clear and
unmistakable agreement to arbitrate statutory discrimination claims.  The arbitration provision in the collective
bargaining agreement between Mid-Wilshire and the union contains very general
language regarding grievances.  It does
not mention FEHA, it does not explicitly incorporate by reference any statutory
anti-discrimination laws, and it does not contain an explicit waiver of the
right to seek judicial redress for statutory discrimination causes of
action.  Nothing in the agreement makes
noncompliance with FEHA subject to the arbitration provision.  (See Flores
v. Axxis Network & Telecommunications, Inc., supra, 173 Cal.App.4th at p. 806; Vasquez, supra, 80
Cal.App.4th at pp. 434-435; see also Marcario
v. County of Orange (2007) 155 Cal.App.4th 397, 404, 405 [several
California cases have held that “an employee could not be compelled even to
participate in an arbitration proceeding mandated by a collective bargaining
agreement, if the claims at issue are based upon state statutes,” unless the
agreement to arbitrate such claims is “clear and unmistakable”]; >Jonites v. Exelon Corp. (7th Cir. 2008)
522 F.3d 721, 725 [collective bargaining agreement did not contain an explicit
waiver of right to sue under the Fair Labor Standards Act]; >Meyer v. Irwin Industries, Inc.
(C.D.Cal. 2010) 723 F.Supp.2d 1237, 1247 [collective bargaining agreement did
not clearly or unmistakably require arbitration of state law claims].)  In the absence of any “clear and
unmistakable,” “particularly clear,” or “explicitly stated” reference to
arbitrating statutory discrimination claims in the agreement, Mendez is not
required to arbitrate her statutory claims.

            Mid-Wilshire
points to Article 15 of the collective bargaining agreement, entitled “EQUAL
OPPORTUNITY,” which states that “[i]t is the policy of the Employer and the
Union to be in compliance with all City, County, State and Federal regulations
relative to discrimination,” to Article 21, which states that “[t]he employer
agrees to abide by applicable Federal and State laws and regulations and local
ordinances” and to Article 25, which states that “[e]mployees are entitled to
be treated with respect and dignity at all times.”  Mid-Wilshire argues that this language in the
collective bargaining agreement “expressly addresses statutory discrimination”
and “should be interpreted such that the grievance procedure (including binding
arbitration) applies to [Mendez’s] claims of statutory discrimination.”

            The court
in Vasquez did state that even a
“broad, nonspecific” arbitration clause could include statutory discrimination
claims if it “is coupled with ‘an “explicit incorporation of statutory
antidiscrimination requirements” elsewhere in the contract.’”  (Vasquez,
supra, 80 Cal.App.4th at p. 435.)href="#_ftn5" name="_ftnref5" title="">^[5]  The collective bargaining agreement here,
however, contains no such explicit incorporation.  Neither Article 15, Article 21, nor Article
25 explicitly incorporates any of the provisions of FEHA prohibiting disability
discrimination, age discrimination, and failure to provide reasonable
accommodation.  The general reference to complying
with and abiding by all state and local discrimination laws is not an explicit
incorporation of FEHA.  (See >Brown v. >ABF> Freight Systems, Inc. (4th Cir. 1999)
183 F.3d 319, 322 [although provision in collective bargaining agreement
providing that the employer will not discriminate “against any individual ‘with
respect to hiring, compensation, terms or conditions of employment’
. . . may parallel, or even parrot, the language of federal
antidiscrimination statutes and prohibit some of the same
conduct, . . . none of those statutes is thereby explicitly >incorporated into the agreement”].)  At a minimum, the agreement must specify the
statutes for which claims of violation will be subject to arbitration.  (See Ibarra
v. United Parcel Service (5th Cir. 2012) 695 F.3d 354, 359-360 [“courts
have concluded that for a waiver of an employee’s right to a judicial forum for
statutory discrimination claims to be clear and unmistakable, the [collective
bargaining agreement] must, at the very least, identify the specific statutes
the agreement purports to incorporate or include an arbitration clause that
explicitly refers to statutory claims”]; Bratten
v. SSI Services, Inc. (6th Cir. 1999) 185 F.3d 625, 631 [“post->Wright courts appear to be in agreement
that a statute must specifically be mentioned in a [collective bargaining
agreement] for it to even approach Wright’s
‘clear and unmistakable’ standard”]; cf. Safrit
v. Cone Mills Corp. (4th Cir. 2001) 248 F.3d 306, 307, 308 [section in
collective bargaining agreement stating that the parties agree “‘that they will
abide by all the requirements of Title VII
of the Civil Rights Act of 1964’” and that “‘[u]nresolved grievances arising
under this Section are the proper subjects for arbitration’” was a general
arbitration clause coupled with an “‘unmistakably clear’” provision that
discrimination statutes are part of the agreement].)  The collective bargaining agreement here does
not identify any specific statute.

            Under
Mid-Wilshire’s theory, a collective bargaining agreement that contained a broad
arbitration clause coupled with general language about complying with the law
would pass the clear and unmistakable waiver test.  That is not a fair reading of >Wright, 14 Penn> Plaza, and Vasquez.  Here, as in >Vasquez, “there is a contractual
commitment not to discriminate . . . but there is no express
provision that the antidiscrimination commitment is subject to the grievance
and arbitration provisions,” nor is FEHA “even mentioned.”  (Vasquez,
supra, 80 Cal.App.4th at p.
436.)  Mendez’s claims are not arbitrable
under the broad arbitration clause coupled with explicit incorporation
elsewhere theory.

            Mid-Wilshire
argues that “the holding in Vasquez
has been overturned by recent United States Supreme Court decisions,” such as >Concepcion.  Mid-Wilshire argues that the “Supreme Court’s
decision in [Concepcion]
. . . calls into question any state law that thwarts arbitration
based on the type of claim being sought,” and that “Vasquez is a state law which thwarts arbitration with respect to
certain types of claim[s], i.e., statutory claims of discrimination.”  Therefore, Mid-Wilshire asserts, “>Vasquez has been implicitly overruled by
the United States Supreme Court in [Concepcion].”href="#_ftn6" name="_ftnref6" title="">>^[6]

            Mid-Wilshire
does not suggest, however, that Wright
and 14 Penn Plaza have been
overruled, and we see no basis for reaching such a conclusion.  Post-Concepcion
federal and California cases
continue to cite Wright, >14 Penn Plaza, and even >Vasquez. 
(See, e.g., City of Los Angeles v.
Superior Court (2013) 56 Cal.4th 1086, 1103 [citing but distinguishing >Wright]; Wade v. Ports America
Management Corp., supra, 218
Cal.App.4th at p. 654, fn. 2 [citing 14
Penn Plaza and Wright]; >Choate v. Celite Corp. (2013) 215
Cal.App.4th 1460, 1465 [citing Vasquez
and 14 Penn Plaza for the proposition
that “a collective bargaining agreement validly waives a union member’s right
to litigate federal or state claims in a judicial forum only if the waiver is
clear and unmistakable”]; Harris v.
Bingham McCutchen LLP, supra, 214
Cal.App.4th at p. 1408 [citing 14
Penn Plaza and Wright]; >Ibarra v. United Parcel Service, >supra, 695 F.3d at pp. 356-360
[citing 14 Penn Plaza and >Wright].)  As the court stated in Harris, footnote six of Justice Scalia’s opinion in >Concepcion “suggests the Supreme Court
would approve of the requirement . . . that contractual waivers of
statutory antidiscrimination litigation rights must be expressly stated to be
enforceable.”  (Harris, supra, at p.
1408.)href="#_ftn7" name="_ftnref7" title="">^>[7]

 

            D.        Arbitrability
of Mendez’s Remaining Claims

            The trial
court denied Mid-Wilshire’s motion to compel arbitration of all of Mendez’s
claims, statutory and common law. 
Because the collective bargaining agreement did not clearly and
unmistakably refer Mendez’s statutory discrimination claims to arbitration, the
trial court properly denied Mid-Wilshire’s motion to compel arbitration of
those claims.  With respect to Mendez’s
common law claims, Mid-Wilshire has not presented any legal argument that the
trial court’s denial of Mid-Wilshire’s motion to compel arbitration of those
claims was erroneous.  We therefore deem
any claim of error forfeited.  (See >In re Sade C. (1996) 13 Cal.4th 952,
994; Aguayo v.
Amaro (2013) 213 Cal.App.4th 1102, 1109;
Gunn v. Mariners Church, Inc. (2008)
167 Cal.App.4th 206, 218.)

 

DISPOSITION

 

            The order
is affirmed.  Mendez is to recover her
costs on appeal.

 

 

                                                                                    SEGAL,
J.href="#_ftn8" name="_ftnref8" title="">^*

 

 

We concur:

 

 

 

                        PERLUSS,
P. J.

 

 

 

                        ZELON,
J.