Rocha v. Kinecta Fed. Credit Union





















Filed 8/22/12 Rocha v. Kinecta Fed. Credit Union CA2/5













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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

EVA ROCHA, Plaintiff and Appellant, v. KINECTA FEDERAL CREDIT UNION et al., Defendants and Respondents.

B238401 (Los Angeles County Super. Ct. No. BC457246)

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

René L.
Barge and Gary S. Bennet for Plaintiff and Appellant.

Jackson
Lewis, David G. Hoiles, Jr., and Karen D. Simpson, for Defendant s and
Respondents.

Plaintiff,
Eva Rocha, appeals from a November
15, 2011 order compelling arbitration of her individual wage and
hour causes of action but dismissing her class claims. We conclude:
the order under review are appealable; both defendants, Kinecta Federal
Credit Union and Kinecta Alternative Financial Solutions, Inc., may compel
arbitration; the agreement to arbitrate does not permit classwide arbitration;
any issue concerning title 29 United States Code section 157 has been
forfeited; and the trial court did not abuse its discretion in refusing to
continue the hearing date on the motion to compel arbitration. We affirm the order under review.

Defendants moved to compel arbitration of
plaintiff’s individual causes of action and dismissing her class claims. Plaintiff was employed by Nix Check Cashing
in October 2006 as a manager in training.
One month later she became a senior teller. Subsequently Nix Check Cashing was acquired
by defendants. Plaintiff became an
employee of Kinecta Alternative Financial Solutions, Inc., a wholly-owned
subsidiary of Kinecta Federal Credit Union.
Her job title was changed to branch supervisor with no pay change. On December
17, 2007, plaintiff was asked to sign an arbitration agreement with
Kinecta Federal Credit Union and its wholly-owned subsidiaries.

The arbitration
agreement contains no provision which permits an employee to pursue a class
action in the arbitral forum. The
arbitration agreement provides in relevant part: “I further agree and acknowledge that the
Credit Union and I will utilize binding arbitration to resolve all disputes
that may arise out of the employment context.
Both the Credit Union and I agree that any claim, dispute and/or
controversy that either I may have against the Credit
Union . . . or the Credit Union may have against me,
arising from, or related to, or having any relationship or connection
whatsoever with my seeking employment with, employment by, or other association
with the Credit Union shall be submitted to and determined exclusively by
binding arbitration under the Federal Arbitration Act, in conformity with the
procedures of the California Arbitration Act (Cal. Code Civ. Proc. Sections
1280 et seq., including section
1283.05 and all of the Act’s other mandatory and permissive rights to
discovery). Included within the scope of
this Agreement are all disputes, whether based on tort, contract, statute
(including, but not limited to, any claims of discrimination and harassment,
whether they be based on the California Fair Employment and Housing Act, Title
VII of the Civil Rights Act of 1964, as amended, or any other state or federal
law or regulation), equitable law, or otherwise, with exception of claims
arising under the National Labor Relations Act, which are brought before the
National Labor Relations Board, claims for medical and disability benefits
under the California Workers’ Compensation Act, Employment Development Department
claims, or proceedings before the California Department of Fair Employment and
Housing, or the United States Equal Employment Opportunity Commission (although
if I choose to pursue a claim following the exhaustion of such administrative
remedies, that claim would be subject to the provisions of this
Agreement). . . . I understand and agree to this
binding arbitration provision, and both I and the Credit Union give up our
right to trial by jury of any claim I or the Credit Union may have against each
other.”

First,
defendants argue that plaintiff may not appeal.
Because all of her class claims have been dismissed, the orders under
review are appealable. (Code Civ. Proc.,
§ 906; In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757; >Franco v. Athens Disposal Co., Inc. (2009)
171 Cal.App.4th 1277, 1288.) There is no
merit to defendants’ argument the Federal Arbitration Act appeal provisions
preempt this state’s class action appealability jurisprudence. The limited preemptive effect of the Federal
Arbitration Act has not been extended beyond title 9 United States Code section
2. (Cable
Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1354 [holding in >Hall Street Associates L.L.C. v. Mattel,
Inc. (2008) 552 U.S. 576, 584 concerning exclusive vacatur grounds under
the Federal Arbitration Act not entitled to preemptive effect]; >Rosenthal v. Great Western Fin. Securities
Corp. (1996) 14 Cal.4th 394, 407-410 [jury trial requirement in 9 U.S.C. §§
9-10 not applicable to state court litigation]; Muao v. Grosvenor Properties (2002) 99 Cal.App.4th 1085, 1091
[appeal provisions in 9 U.S.C. § 16 do not preempt this state’s appellate
review rules]; Siegel v.
Prudential Ins. Co. of America (1998) 67 Cal.App.4th 1270, 1290
[“[N]either sections 10 and 12 nor the manifest disregard of the law rule
preempt the California rule which prevents reweighing the merits of an
arbitrator’s decision.”].)

Second,
plaintiff argues that Kinecta Alternative Financial Solutions, Inc. is not a
party to the arbitration agreement. The
arbitration agreement is between plaintiff and Kinecta Federal Credit Union and
its wholly owned subsidiaries. The
complaint alleges that Kinecta Federal Credit Union is a subsidiary of Kinecta
Alternative Financial Solutions, Inc.
Thus, the arbitration agreement extends to Kinecta Federal Credit
Union. Even if the express language of
the arbitration agreement did not apply to Kinecta Federal Credit Union, agency
and equitable estoppel principles support the trial court’s order to
arbitrate. (Crowley v. Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158
Cal.App.4th 1061, 1069-1073; Nguyen v.
Tran (2007) 157 Cal.App.4th 1032, 1036-1037; Westra v. Marcus & Millichap Real Estate
Investment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 762; see >DMS Services, Inc. v. Superior Court (2012)
205 Cal.App.4th 1346, 1356.)

Third,
plaintiff argues that the trial court erred in failing to apply the class
action waiver analysis in Gentry v.
Superior Court (2007) 42 Cal.4th 443, 453-456. To begin with, plaintiff has no right to seek
classwide arbitration as defendants never agreed to permit such. (AT&T
Mobility LLC v. Concepcion (2011) 563 U.S. ___, ___ [131 S.Ct. 1740,
1750-1751] [“The conclusion follows that name="SDU_1751">class
arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the
FAA.”]; Stolt-Nielsen v. AnimalFeeds
International Corp. (2010) 559 U.S. ___, __ [130 S.Ct. 1758, 1775]; >Kinecta Alternative Financial Solutions,
Inc. v. Superior Court (2012) 205 Cal.App.4th 506, 513-519.) Gentry,
with its classwide arbitration analysis, is irrelevant and thus has no
application here. In any event,
plaintiff’s brief one and one-half page declaration presents little evidence
concerning the so-called Gentry factors. As a result, Gentry does not warrant setting aside the trial court’s
ruling. (Kinecta Alternative Financial Solutions, Inc. v. Superior Court, >supra, 205 Cal.App.4th at p. 517; >Brown v. Ralphs Grocery Co. (2011) 197
Cal.App.4th 489, 498.)

Fourth,
plaintiff argues the arbitration agreement, which in effect serves to bar
class-based relief, violates title 29 United States Code section 157. This contention was not presented in the
trial court. It has thus been
forfeited. (Pearson
Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 681; Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1,
30-31; Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co. (2011) 197 Cal.App.4th 733, 740; Brown v. Ralphs Grocery
Co., supra, 197 Cal. App. 4th at
p. 498, fn. 4; Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12; Countrywide
Financial Corp. v. Bundy (2010) 187
Cal.App.4th 234, 264; see Doers v. Golden Gate Bridge etc.
Dist. (1979) 23 Cal.3d 180,
185, fn. 1.)

Fifth,
plaintiff argues the trial court should have continued the hearing on the
motion to compel arbitration. Citing
federal decisions, plaintiff argues she should have been permitted to propound
a limited number of discovery devices concerning the Gentry factors. The trial
court did permit limited discovery on issue pertinent to the motion to compel
arbitration. We review a continuance
request denial for an abuse of discretion.
(Johnson v. >Alameda> >County> >Medical> >Center> (2012) 205 Cal.App.4th 521, 532.) Plaintiff has failed to demonstrate an abuse
of discretion occurred. As noted, the
present case cannot involve the Gentry
factors as there was no agreement to arbitrate class claims.

The order under review is
affirmed. Defendants, Kinecta
Federal Credit Union and Kinecta Alternative Financial Solutions, Inc., shall
recover their costs on appeal from plaintiff,
Eva Rocha.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS



TURNER,
P. J.



We concur:



ARMSTRONG,
J. KRIEGLER,
J.